-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Q236lf5rkPIZ3j146ieA1h5auqR0AixpfmOJGDh7kptdd1XsBtfB/T1ODyPPVBaT 2OwI3VbA2Z77MPqaVN75KQ== 0000950117-99-001686.txt : 19990813 0000950117-99-001686.hdr.sgml : 19990813 ACCESSION NUMBER: 0000950117-99-001686 CONFORMED SUBMISSION TYPE: F-4/A PUBLIC DOCUMENT COUNT: 20 FILED AS OF DATE: 19990812 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NEWCOURT CREDIT GROUP INC CENTRAL INDEX KEY: 0001037603 STANDARD INDUSTRIAL CLASSIFICATION: LOAN BROKERS [6163] IRS NUMBER: 000000000 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: F-4/A SEC ACT: SEC FILE NUMBER: 333-78869-01 FILM NUMBER: 99685356 BUSINESS ADDRESS: STREET 1: STE 3500 BCE PLACE STREET 2: 181 BAY ST P.O.BOX 827 CITY: TORONTO ONTARIO STATE: A6 BUSINESS PHONE: 4165942400 MAIL ADDRESS: STREET 1: 181 BAY STREET SUITE 3500 STREET 2: PO BOX 827 CITY: TORONTO ONTARIO FILER: COMPANY DATA: COMPANY CONFORMED NAME: AT&T CAPITAL CORP /DE/ CENTRAL INDEX KEY: 0000897708 STANDARD INDUSTRIAL CLASSIFICATION: FINANCE SERVICES [6199] IRS NUMBER: 223211453 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: F-4/A SEC ACT: SEC FILE NUMBER: 333-78869 FILM NUMBER: 99685357 BUSINESS ADDRESS: STREET 1: 44 WHIPPANY ROAD CITY: MORRISTOWN STATE: NJ ZIP: 07962-1983 BUSINESS PHONE: 2013973000 MAIL ADDRESS: STREET 1: 44 WHIPPANY RD CITY: MORRISTOWN STATE: NJ ZIP: 07962-1983 F-4/A 1 AT&T CAPITAL CORPORATION NEWCOURT CREDIT GROUP INC. AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 12, 1999 REGISTRATION NOS. 333-78869; 333-78869-01 ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------ AMENDMENT NO. 1 TO FORM F-4 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------------ NEWCOURT CREDIT GROUP INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) ------------------------ ONTARIO NOT APPLICABLE (STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (IRS EMPLOYER INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
NEWCOURT CENTRE 207 QUEENS QUAY WEST SUITE 700 TORONTO, ONTARIO, CANADA M5J 1A7 (416) 507-2400 (ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL OFFICES) ------------------------ AT&T CAPITAL CORPORATION (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) ------------------------ DELAWARE 22-3211453 (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
2 GATEHALL DRIVE PARSIPPANY, NEW JERSEY 07054 (973) 606-3500 (ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) ------------------------ SCOTT J. MOORE, ESQ. EXECUTIVE VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY NEWCOURT CREDIT GROUP INC. AT&T CAPITAL CORPORATION 2 GATEHALL DRIVE PARSIPPANY, NEW JERSEY 07054 (973) 606-3500 (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) ------------------------ COPIES TO: M. DAVID GALAINENA, ESQ. WINSTON & STRAWN 35 WEST WACKER DRIVE CHICAGO, ILLINOIS 60601 (312) 558-5600 ------------------------ APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as practicable after the effective date of this Registration Statement. If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] ------------------------ THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE. ================================================================================ THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED. PROSPECTUS OFFER TO EXCHANGE ALL $300,000,000 7.125% NOTES, SERIES A DUE DECEMBER 17, 2003 FOR $300,000,000 7.125% EXCHANGE NOTES, SERIES A DUE DECEMBER 17, 2003 OF NEWCOURT CREDIT GROUP INC. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST GUARANTEED BY AT&T CAPITAL CORPORATION ------------------------ THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M. NEW YORK CITY TIME, ON SEPTEMBER 15, 1999, UNLESS EXTENDED. ------------------------ Terms of this exchange offer: We will exchange all outstanding 7.125% Notes, Series A that are validly tendered and not withdrawn prior to the expiration of this exchange offer. You may withdraw tenders of 7.125% Notes, Series A at any time prior to the expiration of this exchange offer. This exchange of notes will not be a taxable exchange for U.S. federal income tax purposes, but you should see 'United States Federal Income Tax Considerations' on page 37 for more information. We will not receive any proceeds from this exchange offer. The 7.125% Exchange Notes, Series A and the outstanding 7.125% Notes, Series A evidence the same indebtedness and are substantially identical, except that the 7.125% Exchange Notes, Series A have been registered under the Securities Act and certain transfer restrictions and registration rights relating to the 7.125% Notes, Series A do not apply to the 7.125% Exchange Notes, Series A. The Exchange Notes will be issued by Newcourt Credit Group Inc. The Exchange Notes will be unconditionally guaranteed as to payment of principal, premium, if any, and interest by AT&T Capital. The Exchange Notes are not guaranteed or supported in any way by AT&T Corp. AT&T Capital is not owned by, or an affiliate of, AT&T Corp. ------------------------ SEE 'RISK FACTORS' BEGINNING ON PAGE 10 FOR A DISCUSSION OF CERTAIN RISKS THAT YOU SHOULD CONSIDER PRIOR TO TENDERING YOUR NOTES. ------------------------ NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. ------------------------ The date of this prospectus is August 12, 1999. ------------------------ YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS DOCUMENT OR TO WHICH WE HAVE REFERRED YOU. WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH INFORMATION THAT IS DIFFERENT. THIS DOCUMENT MAY ONLY BE USED WHERE IT IS LEGAL TO SELL THESE SECURITIES. THE INFORMATION IN THIS DOCUMENT MAY ONLY BE ACCURATE ON THE DATE OF THIS DOCUMENT. TABLE OF CONTENTS
PAGE ---- Prospectus Summary.................... 3 Where You Can Find More Information... 3 Financial Information................. 4 Recent Developments................... 4 Risk Factors.......................... 10 Use of Proceeds....................... 14 Newcourt.............................. 14 AT&T Capital.......................... 16 The Exchange Offer.................... 17 PAGE ---- Description of the Exchange Notes. 25 Canadian Federal Income Tax Considerations...................... 36 United States Federal Income Tax Considerations...................... 37 ERISA Considerations.................. 37 Plan of Distribution.................. 38 Legal Matters......................... 39 Experts............................... 39
2 PROSPECTUS SUMMARY The following summary highlights selected information from this prospectus but may not contain all of the information that is important to you. This prospectus includes specific terms of the notes we are offering, as well as information regarding our business and detailed financial data. We encourage you to read this entire prospectus. WHERE YOU CAN FIND MORE INFORMATION Newcourt and AT&T Capital have filed with the Securities and Exchange Commission a Registration Statement on Form F-4, under the Securities Act of 1933, with respect to the securities and the guarantee of the securities offered by this prospectus. This prospectus, which constitutes a part of the Registration Statement, does not contain all the information included in the Registration Statement. You may read copies of the Registration Statement and the exhibits, without charge, at the SEC's offices, or obtain copies of these documents from the SEC's Public Reference Section, by paying the copying fees. Statements made in this prospectus concerning the provisions of any contract, agreement or other document referred to are not necessarily complete. This prospectus incorporates by reference important business and financial information about Newcourt and AT&T Capital that is not included in or delivered with this prospectus. You are urged to read each referenced contract, agreement or other document in its entirety. All the documents are filed as exhibits to the Registration Statement or to documents incorporated by reference in this prospectus. Newcourt has elected to 'incorporate by reference' into this prospectus other documents filed with the SEC by Newcourt. As allowed by the SEC, the documents incorporated by reference into this document are considered part of this document. Newcourt and AT&T Capital can disclose important information to you in this document by referring to these other documents. Newcourt is subject to the information and reporting requirements of the Securities Exchange Act of 1934. Newcourt files periodic reports and other information with the SEC. You may read these reports and other information filed by Newcourt, without charge, or obtain copies for a fee, from the SEC's Public Reference Section. Please call the SEC at 1-800-SEC-0330 for more information on the public reference rooms. You can also find many of these documents on the SEC's web site at http://www.sec.gov. Newcourt incorporates by reference the following documents previously filed with the SEC (File No. 061-14604) and any future filings it will make with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus: Newcourt's Annual Report on Form 40-F for the year ended December 31, 1998; Newcourt's audited consolidated financial statements and the auditors' report thereon for the fiscal years ended December 31, 1998 and 1997 on Form 6-K dated February 26, 1999; Newcourt's Management Information Circular of Newcourt dated February 26, 1999, except the sections entitled 'Governance and Compensation Committee,' 'Report on Executive Compensation,' 'Corporate Governance' and the 'Share Performance Graph' on Form 6-K; Newcourt's Form 6-K filed March 8, 1999; Newcourt's Form 6-K filed March 12, 1999; Newcourt's Form 6-K filed March 18, 1999; Newcourt's Form 6-K filed April 6, 1999; Newcourt's Form 6-K filed April 22, 1999; Newcourt's unaudited interim financials for the three month period ending March 31, 1999 on Form 6-K filed May 5, 1999; Newcourt's Form 6-K filed June 15, 1999; Newcourt's unaudited interim financials for the six month period ending June 30, 1999 on Form 6-K filed August 5, 1999; Newcourt's Form 6-K filed August 5, 1999; and Newcourt's Form 6-K filed August 9, 1999. 3 AT&T Capital was previously subject to the information and reporting requirements of the Exchange Act. However, AT&T Capital is no longer required to file those reports and information. Summarized financial information concerning the company will be included in a footnote to the financial statements contained in Newcourt's Exchange Act reports. Information in this prospectus supersedes information incorporated by reference that AT&T Capital or Newcourt filed with the SEC before the date of this prospectus. Information AT&T Capital or Newcourt files later with the SEC will automatically update and, in some cases, supersede this information. Copies of the above documents of AT&T Capital or Newcourt may be obtained upon request without charge from Newcourt Credit Group Inc., 207 Queens Quay West, Suite 700, Toronto, Ontario, Canada M5J 1A7 (Telephone Number 416-507-2400), attention: Communications Department. TO OBTAIN TIMELY DELIVERY, YOU MUST REQUEST THE DOCUMENTS NO LATER THAN SEPTEMBER 8, 1999. FINANCIAL INFORMATION Dollar amounts included in this prospectus or incorporated by reference into this prospectus are in either United States dollars ('U.S. $' or '$') or Canadian dollars ('C$'). Our consolidated financial statements included in this prospectus and in our reports filed pursuant to the Exchange Act are prepared in accordance with accounting principles generally accepted in Canada ('Canadian GAAP'). Differences between Canadian GAAP and accounting principles generally accepted in the United States ('U.S. GAAP') as they affect our financial statements are explained in a note to our audited consolidated financial statements incorporated by reference into this prospectus. On January 1, 1999, we began reporting our financial results in U.S. dollars. RECENT DEVELOPMENTS On March 8, 1999, Newcourt announced that it had entered into an Agreement and Plan of Reorganization with The CIT Group, Inc. pursuant to which the outstanding common shares of Newcourt will be converted into either common stock of The CIT Group, Inc. or, in the case of shares held by Canadian residents who so elect, into a new class of stock exchangeable into common stock of The CIT Group, Inc. and Newcourt will become a wholly-owned subsidiary of The CIT Group, Inc. On June 15, 1999, Newcourt and The CIT Group, Inc. announced that they had entered into an Amendment and Plan of Reorganization. On August 5, 1999, Newcourt and The CIT Group, Inc. announced that they had revised their agreement and had entered into an Amended and Restated Agreement and Plan of Reorganization. Completion of the transaction is subject to a number of conditions set forth in the Agreement and Plan of Reorganization, as amended and restated, which is on file with the SEC and which is incorporated by reference herein. The preceding description of the Agreement and Plan of Reorganization, as amended and restated, is qualified in its entirety by reference to the full and complete text of the agreement and we recommend reading the agreement. The parties cannot be certain whether the transaction contemplated by the Agreement and Plan of Reorganization, as amended and restated, will be completed in accordance with the terms thereof. See ' Newcourt -- Announced Acquisition of Newcourt' herein. Additionally, you should not assume that The CIT Group, Inc. will guarantee the notes offered hereby if the business combination transaction with The CIT Group, Inc. is completed. NEWCOURT OVERVIEW Newcourt was formed in 1984 as an investment bank which originated and structured asset based financings for the corporate and institutional asset finance market and syndicated such financings to Canadian financial institutions. In 1988, Newcourt broadened its activities to include vendor and direct equipment financing. Today, Newcourt is one of the world's largest providers of vendor finance and one of the world's largest non-bank commercial asset finance companies, having 4 approximately U.S. $24.6 billion (C$36.2 billion) of owned and managed assets and U.S. $3.1 billion (C$4.6 billion) shareholders' equity at June 30, 1999. Newcourt provides asset-based sales and inventory financing for a variety of equipment to both vendors and customers through Newcourt Financial, its commercial finance business. Newcourt also provides asset-based financing for high value assets and related advisory services through Newcourt Capital, its corporate finance business. Newcourt originates asset finance business through innovative financing techniques and provides focused client services and complementary product offerings. Newcourt characterizes its risk management culture as conservative and has a solid credit underwriting performance. Newcourt's international origination and servicing capabilities span twenty-six countries around the globe. Newcourt serves clients in Canada, the United States, the United Kingdom, the Asia/Pacific region, Europe, Mexico and South America. Newcourt's long-term debt is rated 'Baa3' by Moody's Investors Services Inc. and 'BBB' by Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies. Newcourt's principal executive offices are located at: Newcourt Centre, 207 Queens Quay West, Suite 700, Toronto, Ontario M5J1AF, telephone number (416) 507-2400. AT&T CAPITAL AT&T Capital, an indirect wholly-owned subsidiary of Newcourt, is a full-service, diversified equipment leasing and finance company that operates principally in the United States. AT&T Capital, through its various subsidiaries, leases and finances a wide variety of equipment, including telecommunications equipment (such as private branch exchanges, telephone systems and voice processing units), information technology equipment (such as personal computers, retail point of sale systems and automated teller machines), general office, manufacturing and medical equipment and transportation equipment. In addition, AT&T Capital provides franchise financing for franchisees and financing collateralized by real estate. AT&T Capital's principal executive offices are located at: 2 Gatehall Drive, Parsippany, New Jersey 07054 and its telephone number is (973) 606-3500. AT&T Capital's long-term debt is rated 'A - ', 'BBB+', 'Baa3' and 'BBB' by Duff & Phelps Credit Rating Company, Fitch IBCA, Inc., Moody's Investors Services Inc. and Standard & Poor's Ratings Services, a division of The McGraw Hill Companies, respectively. RISK FACTORS You should consider carefully all of the information set forth in this prospectus. In particular, you should consider the specific factors set forth under 'Risk Factors' before deciding to tender your notes in the exchange offer. THE EXCHANGE OFFER Securities Offered........................... We are offering up to $300,000,000 aggregate principal amount of 7.125% Exchange Notes, Series A due December 17, 2003, which have been registered under the Securities Act of 1933. The Exchange Notes evidence the same indebtedness as the notes you currently own and have substantially identical terms, except that some transfer restrictions and registration rights relating to the notes you currently own do not apply to the Exchange Notes. The Exchange Offer........................... We are offering to issue the Exchange Notes in exchange for the notes you currently own on a dollar-for-dollar basis. The notes you currently own were not registered with the SEC. We are offering to issue the Exchange Notes to satisfy our obligations contained in the registration rights agreement entered into when the notes you currently own were originally sold by us. You may
5 take part in this exchange offer by following the procedures described in this prospectus under the heading 'The Exchange Offer.' Expiration Date.............................. This exchange offer will expire at 5:00 p.m., New York City time, on September 15, 1999, unless we extend it. Tenders...................................... If you decide to exchange your notes for Exchange Notes, you must acknowledge that you are not engaging in, and do not intend to engage in, a distribution of your new Exchange Notes. Withdrawal................................... If you decide to exchange your notes, you may change your mind and choose not take part in this exchange offer at any time prior to September 15, 1999. If we decide for any reason not to accept any notes you currently own for exchange, your notes will be returned without expense to you promptly after the expiration or termination of this exchange offer. Conditions to the Exchange Offer............. The exchange offer is subject to some conditions, which we may waive. Please read the section 'The Exchange Offer -- Conditions to the Exchange Offer' of this prospectus for more information regarding conditions to this exchange offer. United States Federal Income Tax Considerations............................. Your exchange of notes for Exchange Notes will not result in any gain or loss to you for United States federal income tax purposes. See 'United States Federal Income Tax Considerations' section of this prospectus. Procedures for Tendering Old Notes........... See the procedures described in this prospectus under the heading 'The Exchange Offer -- General Procedures.' Use of Proceeds.............................. We will receive no proceeds from the exchange of notes for Exchange Notes. For more details, see 'Use of Proceeds' section. Exchange Agent............................... The Chase Manhattan Bank, trustee for the notes, is the exchange agent for this exchange offer. The Chase Manhattan Bank's address and telephone number are set forth under the heading 'The Exchange Offer -- Exchange Agent.' No Dissenters' or Appraisal Rights........... Holders of notes will not have dissenters' rights or appraisal rights in connection with this exchange offer. See 'The Exchange Offer -- Appraisal Rights.'
CONSEQUENCES OF NOT EXCHANGING NOTES If you do not exchange your notes for the Exchange Notes, you will continue to be subject to restrictions on transfer of your notes. The restrictions on transfer of your notes exist because we issued the notes you currently own pursuant to exemptions from, or in transactions not subject to, the registration requirements of the Securities Act and state securities laws. In general, you may only offer or sell the notes you currently own if they are registered under the Securities Act and state securities laws, or offered and sold pursuant to an exemption from those requirements. We do not intend to register the notes you currently own under the Securities Act. In addition, if you take part in this exchange offer for the purpose of participating in a distribution of your new Exchange Notes, your Exchange Notes may be treated as restricted securities. If so, you will be required to comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale of your Exchange Notes. To the extent notes are tendered and accepted by us, any trading market for the notes you currently own would be adversely affected. 6 SUMMARY DESCRIPTION OF THE EXCHANGE NOTES The Exchange Notes and the notes you currently own evidence the same indebtedness and are identical in all material respects, except that the Exchange Notes are registered with the Securities and Exchange Commission and the transfer restrictions and registration rights relating to the notes you currently own do not apply to the Exchange Notes. Securities Offered........................... We are offering up to $300,000,000 aggregate principal amount of 7.125% Exchange Notes, Series A due December 17, 2003. Guaranty..................................... The payment of principal, premium, if any, and interest on the Exchange Notes is guaranteed by AT&T Capital. AT&T Capital is not owned by, and is not affiliated with, AT&T Corp. Maturity Date................................ December 17, 2003. Interest Payment Dates....................... June 15 and December 15, beginning December 15, 1999. Ranking and Security......................... The Exchange Notes will be unsecured obligations of Newcourt. The Exchange Notes will rank equally in right of payment with all other unsecured and unsubordinated indebtedness of Newcourt. Redemption................................... We do not have the option to redeem the Exchange Notes and the holders of the Exchange Notes will not have the option to request repayment of the Exchange Notes prior to December 17, 2003. Certain Covenants............................ The indenture under which we are issuing the Exchange Notes contains covenants restricting or limiting our ability to, among other things: merge or consolidate with other companies, sell substantially all of our assets, or incur some types of liens. Registration Rights.......................... You will not be entitled to any registration rights in connection with the Exchange Notes.
RATIOS OF EARNINGS TO FIXED CHARGES The following table sets forth the unaudited historical ratios of earnings to fixed charges for Newcourt for the six month period ended June 30, 1999 and for the years ended December 31, 1994 through 1998.
FOR THE HISTORICAL(1) SIX MONTHS YEAR ENDED ENDED DECEMBER 31, JUNE 30, -------------------------------- 1999(1) 1998 1997 1996 1995 1994 ------- ---- ---- ---- ---- ---- Ratio of earnings to fixed charges................. 1.39 1.47 1.11 1.60 1.53 1.55
- ------------ (1) Calculated under Canadian GAAP, earnings before income taxes plus fixed charges (the sum of interest on indebtedness and the portion of rentals representative of the interest factor) divided by fixed charges. 7 The following table sets forth the unaudited historical ratios of earnings to fixed charges for AT&T Capital for the six month period ended June 30, 1999 and for the years ended December 31, 1994 through 1998.
FOR THE HISTORICAL(1) SIX MONTHS YEAR ENDED ENDED DECEMBER 31, JUNE 30, -------------------------------- 1999(1) 1998 1997 1996 1995 1994 ------- ---- ---- ---- ---- ---- Ratio of earnings to fixed charges................. 1.25 1.35 1.07 1.60 1.50 1.62
- ------------ (1) Calculated under U.S. GAAP, earnings before income taxes and cumulative effect on prior years of accounting change plus fixed charges (the sum of interest on indebtedness and the portion of rentals representative of the interest factor) divided by fixed charges. Fixed charges do not include distributions on company-obligated preferred securities of the company's subsidiaries. Prior to October 1, 1996, a portion of the company's indebtedness to AT&T Corp. did not bear interest. SELECTED CONSOLIDATED FINANCIAL INFORMATION OF NEWCOURT The following selected financial information has been derived from the consolidated financial statements of Newcourt for the six months ended June 30, 1999 and 1998 and for the five years ended December 31, 1998. The information should be read in conjunction with the consolidated financial statements and accompanying notes which are contained in Newcourt's Annual Report filed on Form 40-F for the year ended December 31, 1998, incorporated into this prospectus. SELECTED SUMMARY FINANCIAL INFORMATION (IN THOUSANDS OF U.S. DOLLARS, EXCEPT PER SHARE AMOUNTS)(1)
FOR THE SIX MONTHS ENDED JUNE 30, YEAR ENDED DECEMBER 31, ------------------------- ---------------------------------------------------------------- 1999(10)(9) 1998(8) 1998(2)(8) 1997(8) 1996(8) 1995(8) 1994(8) ----------- ------- ---------- ------- ------- ------- ------- $ $ $ $ $ $ $ INCOME STATEMENT DATA Securitization and syndication fees.......................... $ 154,168 $ 127,749 $ 291,300 $ 121,668 $ 56,380 $ 28,589 $ 22,124 Net income from affiliated companies and management fees.......................... $ 171,818 $ 67,526 $ 148,630 $ 29,154 $ 20,422 $ 11,663 $ 5,599 Net finance income.............. $ 206,928 $ 241,551 $ 525,612 $ 54,346 $ 33,752 $ 19,127 $ 10,264 ----------- ----------- ----------- ---------- ---------- ---------- -------- Total asset financial income.... $ 532,914 $ 436,826 $ 965,542 $ 205,168 $ 110,555 $ 59,379 $ 37,987 Operating income................ $ 162,885 $ 120,372 $ 304,170 $ 76,719(3) $ 41,332 $ 23,477 $ 15,856 Net income...................... $ 97,731 $ 72,256 $ 189,661 $ 23,466 $ 32,654 $ 18,946 $ 12,072 Earnings per Common and Special Share(4)(5)(6)................ $ 0.66 0.52 $ 1.33 $ 0.86(3) $ 0.62 $ 0.49 $ 0.39 Fully diluted earnings per Common and Special Share(6)(7)................... $ 0.66 $ 0.52 $ 1.33 $ 0.34 $ 0.62 $ 0.49 $ 0.39
AS AT JUNE 30, AS AT DECEMBER 31, ------------------------- ---------------------------------------------------------------- 1999(10)(9) 1998(8) 1998(2)(8) 1997(8) 1996(8) 1995(8) 1994(8) ----------- ------- ---------- ------- ------- ------- ------- $ $ $ $ $ $ $ BALANCE SHEET DATA (8) Total assets.................... $15,631,455 $12,499,607 $15,352,957 $3,983,717 $1,426,078 $ 876,305 $472,897 Debt............................ $11,846,438 $ 8,607,684 $11,607,184 $1,797,478 $1,025,742 $ 684,189 $333,026 Shareholders' equity(4)(5)...... $ 3,102,656 $ 2,905,930 $ 3,018,305 $1,972,520 $ 332,416 $ 157,978 $103,709
8 SELECTED SUMMARY FINANCIAL INFORMATION (IN THOUSANDS OF CANADIAN DOLLARS, EXCEPT PER SHARE AMOUNTS)(1)
FOR THE SIX MONTHS ENDED JUNE 30, YEAR ENDED DECEMBER 31, ------------------------- -------------------------------------------------------- 1999(9) 1998 1998(2) 1997 1996 1995 1994 ------- ---- ------- ---- ---- ---- ---- C$ C$ C$ C$ C$ C$ C$ INCOME STATEMENT DATA Securitization and syndication fees............................ $ 230,067 $ 198,275 452,119 188,837 87,506 44,372 34,338 Net income from affiliated companies and management fees... $ 256,407 $ 104,805 230,685 45,249 31,697 18,102 8,690 Net finance income................ $ 308,802 $ 374,904 815,787 84,349 52,386 29,686 15,930 ----------- ----------- ---------- --------- --------- --------- ------- Total asset financial income...... $ 795,275 $ 677,984 1,498,591 318,435 171,589 92,160 58,958 Operating income.................. $ 243,076 $ 186,824 472,093 119,074(3) 64,150 36,438 24,610 Net income........................ $ 145,845 $ 112,144 294,367 36,421 50,681 29,405 18,737 Earnings per Common and Special Share(4)(5)(6).................. $ 0.98 $ 0.81 2.06 1.33(3) 0.96 0.76 0.60 Fully diluted earnings per Common and Special Share(6)(7)......... $ 0.98 $ 0.81 2.06 0.52 0.96 0.76 0.60
AS AT JUNE 30, AS AT DECEMBER 31, ------------------------- -------------------------------------------------------- 1999(9) 1998 1998(2) 1997 1996 1995 1994 ------- ---- ------- ---- ---- ---- ---- C$ C$ C$ C$ C$ C$ C$ BALANCE SHEET DATA Total assets...................... $23,058,644 $19,400,291 23,828,895 6,183,016 2,213,376 1,360,088 733,970 Debt.............................. $17,476,200 $13,359,745 18,015,185 2,789,816 1,592,026 1,061,911 516,881 Shareholders' equity(4)(5)........ $ 4,573,345 $ 4,510,213 4,684,627 3,061,493 515,934 245,194 160,964
(1) Certain amounts have been reclassified to conform to the presentation adopted in the current year. (2) The increase in the amounts reflected in the selected financial information for 1998 as compared to 1997 was primarily attributable to the inclusion of AT&T Capital Corporation, which was acquired by Newcourt in 1998. (3) Before pre-tax restructuring charges of U.S. $66.4 million (C$103.0 million). (4) Based on the weighted average number of Common Shares and Special Shares outstanding during the period. (5) On November 30, 1995, 1,611,000 Special Shares were converted into 1,611,000 Common Shares. On December 27, 1995, 1,411,675 Special Shares were converted into 1,411,675 Common Shares. On July 2, 1996, the remaining 199,325 Special Shares were converted into 199,325 Common Shares. On December 11, 1995, Newcourt redeemed and cancelled all issued and outstanding Preference Shares. (6) Effective April 14, 1997, Newcourt subdivided on a two-for-one basis all of Newcourt's issued and outstanding Common Shares and all of Newcourt's Common Shares reserved for issuance. The Selected Summary Financial Information set out in the above table has been adjusted to reflect the stock split. (7) Based on the weighted average number of Common Shares and Special Shares outstanding during the period after giving effect to the exercise of outstanding stock options and any other dilutive item. (8) Since Newcourt had adopted the U.S. dollar as its reporting currency effective January 1, 1999, Newcourt's historical financial information has been converted to U.S. dollars using the December 31, 1998 exchange rate of .6443. As of August 11, 1999, the Canadian to U.S. dollar exchange rate was 0.6729. (9) Since Newcourt had adopted the U.S. dollar as its reporting currency effective January 1, 1999, the selected financial data regarding the income statement and earnings per share data; total assets and debt; and shareholders' equity has been converted to Canadian dollars using the six month weighted average exchange rate of 0.6701; the June 30th exchange rate of 0.6779 and the historical exchange rate, respectively. As of August 11, 1999, the Canadian to U.S. dollar exchange rate was 0.6729. (10) In March 1999, Newcourt recorded a one-time pre-tax gain of U.S. $56.6 million (C$85.9 million) arising from its unwinding of certain currency hedges no longer required following the change in Newcourt's reporting currency to U.S. dollars from Canadian dollars. During the second quarter, Newcourt realized a one time pre-tax gain of U.S. $34.3 (C$50.5) from the sale of its automobile fleet leasing business in Canada and the U.K. 9 RISK FACTORS You should give careful consideration to the following risk factors, in addition to the other information included or incorporated by reference in this prospectus. To the extent any of the information in this prospectus constitutes a 'forward-looking statement' for purposes of Section 21E of the Exchange Act or Section 27A of the Securities Act, the risk factors set forth below are meaningful cautionary statements identifying important factors that could cause actual results to differ materially from those anticipated in forward-looking statements. We cannot be certain that our actual results will not materially differ from those anticipated in forward-looking statements contained in this prospectus. Before you participate in this exchange offer, you should be aware that there are various risks, including the ones listed below. You should carefully consider these risk factors, as well as other information contained in this prospectus in evaluating your participation in the exchange offer. NEWCOURT'S AND AT&T CAPITAL'S AVAILABILITY AND COST OF FUNDS FOR OPERATION OF THEIR BUSINESS MAY SUFFER ADVERSELY DUE TO FACTORS BEYOND THEIR CONTROL Each of Newcourt's and AT&T Capital's business requires substantial amounts of cash to support growth and operations. Any number of factors which are beyond our control, such as credit ratings, interest rates, general economic conditions and the perception of Newcourt's and AT&T Capital's business, results of operations, leverage, financial condition and business prospects, may affect the ability of Newcourt and AT&T Capital to obtain funds and the cost of these funds. Further, each of Newcourt and AT&T Capital may now, or in the future become, subject to restrictions as a result of our participation in other debt financing transactions. These restrictions might also affect the amount of cash available to us to operate our respective businesses. While Newcourt and AT&T Capital each continue to obtain new sources of funding, we cannot be certain that cash in an amount sufficient to fund the operations of our respective businesses will always be available. NEWCOURT'S AND AT&T CAPITAL'S BUSINESS MAY SUFFER ADVERSELY UPON ANY DOWNGRADE IN THEIR DEBT RATINGS Newcourt's long-term debt is rated 'Baa3' by Moody's Investors Services Inc. and 'BBB' by Standard & Poor's Ratings Services. AT&T Capital's long-term debt is rated 'A - ,' 'BBB+,' 'Baa3' and 'BBB' by Duff & Phelps Credit Rating Co., Fitch IBCA, Inc., Moody's Investors Services Inc. and Standard & Poor's Ratings Services, respectively. We cannot be certain that any of these ratings agencies will not, at any time, change these ratings. In the event any ratings were lowered, this downgrading would: (1) result in relatively higher borrowing costs, (2) reduce access to traditional funding sources and (3) reduce competitiveness, particularly if any such assigned rating is in a generic rating category that signifies that the debt is less than investment grade. In addition, if our debt ratings are downgraded to ratings below investment grade, such downgrading could result in the termination of our Lucent agreement. Any such downgrading could have an adverse effect on Newcourt's or AT&T Capital's business and a negative impact on the value of the Exchange Notes offered by this prospectus. NEWCOURT AND AT&T CAPITAL DEPEND ON SECURITIZATION PROGRAMS TO PROVIDE FINANCING AND MAY SUFFER ADVERSE FINANCIAL CONSEQUENCES UPON ANY DELAY OR DECREASE IN THEIR ABILITY TO FINANCE ASSETS THROUGH SECURITIZATION PROGRAMS Newcourt and AT&T Capital each sell financial assets ('securitizations') and retain an interest in those financial assets. Our securitization transactions are structured as both private conduit programs and the sale of publicly offered securities. These transactions allow each of Newcourt and AT&T Capital to record securitization gains, manage its respective leverage ratio and to transfer credit risk. Any delay or decrease in the sale of finance assets and/or an increase in the actual defaults from that expected may cause Newcourt's and AT&T Capital's net income and leverage to be adversely affected. Any delay in the securitization of finance receivables may cause 10 leverage to fluctuate, postpone the recognition of the gain on such finance receivables and cause our net income to fluctuate from period to period. NEWCOURT AND AT&T CAPITAL OPERATE IN A HIGHLY COMPETITIVE INDUSTRY AND COMPETE AGAINST ENTITIES WITH SUBSTANTIAL CAPITAL AND RESOURCES The equipment leasing and finance industry in which Newcourt and AT&T Capital operate is highly competitive and is undergoing a process of consolidation. As a result, certain of our competitors' relative cost bases have been reduced. We compete with these companies through price (including the ability to control costs), risk management, innovation and customer services. Principal cost factors include the cost of funds, the cost of selling to or obtaining new end-user customers and vendors and the cost of managing portfolios. Our competitors include captive or related leasing companies (such as General Electric Capital Corporation and IBM Credit Corporation), independent leasing companies (such as Comdisco, Inc.), certain banks engaged in leasing, lease brokers and investment banking firms that arrange for the financing of leased equipment, and manufacturers and vendors which lease their own products to customers. In addition, we compete with all banking and other financial institutions, manufacturers, vendors and others who extend or arrange credit for the acquisition of equipment and in a sense, with end-users' available cash resources to purchase equipment that Newcourt or AT&T Capital may otherwise finance. Many of our competitors are large companies that have substantial capital, technological and marketing resources; some of these competitors are significantly larger than we are and have access to borrowings at a lower cost than we do. In addition, we may not have, in the immediate future, access to sufficient U.S. federal tax capacity to pursue efficiently U.S. tax based lease financing. CHANGES IN RELATIONSHIPS WITH MAJOR VENDORS COULD ADVERSELY AFFECT RESULTS OF OPERATIONS A significant portion of Newcourt's and/or AT&T Capital's consolidated net income is attributable to the financing provided by major vendor relationships, including those with Lucent Technologies, Inc., Dell Corporation, Snap-on Incorporated, Western Star Trucks Inc. and Yamaha Corporation, with respect to products manufactured or distributed by them and, to a lesser extent, to Lucent as an end-user, primarily with respect to the lease of information technology and other equipment or vehicles. Newcourt's and AT&T Capital's commercial relationships with these and other major vendors are governed by formal agreements. Although Newcourt and AT&T Capital intend to seek to maintain and improve their existing relationships with these and other major vendors, we cannot be certain that any agreement with these and other major vendors will be extended beyond their respective termination dates. Further, if they are extended, we cannot be certain that the terms and conditions of future agreements with our major vendors will be as beneficial to Newcourt and AT&T Capital. If we fail to renew any of those agreements or change the terms of the agreements with our major vendors, this may have a material adverse effect on Newcourt and AT&T Capital. In addition, these agreements may contain provisions which allow these vendors to terminate their respective agreement. The agreement with Lucent contains provisions which allow Lucent to terminate the agreement prior to its termination date. If the agreement with Lucent is terminated, the results of operations of Newcourt and AT&T Capital could be adversely affected. NEWCOURT AND AT&T CAPITAL HAVE UNLIMITED LIABILITY UNDER GUARANTEES ISSUED NEWCOURT GUARANTEE. Newcourt has fully and unconditionally guaranteed (the 'Newcourt Guarantee') the payment of any present and future principal, indebtedness for borrowed money incurred by AT&T Capital or by any other person whose debts AT&T Capital has guaranteed, except for (1) any indebtedness for borrowed money where the terms of that indebtedness specifically provide that repayment is not guaranteed by Newcourt; and (2) any indebtedness, (a) for borrowed money secured by liens on, or payable solely from the income and proceeds of, 11 any property of AT&T Capital or any of its subsidiaries and (b) which is not a general obligation of AT&T Capital. Newcourt's liability under the Newcourt Guarantee is unlimited in amount and absolute and unconditional in that defenses based on the lack of validity or the unenforceability of the AT&T Capital debt or any defense or counterclaim available to AT&T Capital will not be available to Newcourt. Because Newcourt expects to guarantee future AT&T Capital debt, as well as amendments, supplements, restatements or replacements of existing AT&T Capital debt, the total outstanding principal amount of AT&T Capital debt to be guaranteed by Newcourt is expected to increase in the future. The aggregate principal amount of AT&T Capital debt was U.S. $8.9 billion (C$13.2 billion) as of June 30, 1999. AT&T CAPITAL GUARANTEE. In connection with Newcourt's acquisition of AT&T Capital, AT&T Capital guaranteed the payment of certain indebtedness and liquidity facilities issued, guaranteed or entered into by Newcourt for the benefit of the holders of the Newcourt debt securities. The amount of Newcourt debt securities covered by AT&T Capital's guarantee was U.S. $2.3 billion (C$3.4 billion) at June 30, 1999. Because AT&T Capital's guarantee covers Newcourt's future indebtedness in addition to the current Newcourt debt securities, the aggregate outstanding principal amount of the Newcourt debt securities to be covered by AT&T Capital's guarantee is expected to increase in the future. The liability of AT&T Capital under AT&T Capital's guarantee is unlimited in amount and absolute and unconditional in that defenses based, among other things, on the lack of validity or the unenforceability of the Newcourt debt securities or any defense or counterclaim available to Newcourt will not be available to AT&T Capital. AT&T CAPITAL'S GUARANTEE MAY BE VOIDABLE BY A BANKRUPTCY COURT As stated above, AT&T Capital, Newcourt's subsidiary, will guarantee the repayment of the Exchange Notes. If a court in a lawsuit by an unpaid creditor or representative of creditors of AT&T Capital were to find that, at the time AT&T Capital issued its guarantee, AT&T Capital was insolvent, or was rendered insolvent by reason of the incurrence of its obligation under the guarantee, was engaged in a business or transaction for which its remaining unencumbered assets constituted unreasonably small capital, or that AT&T Capital intended to incur, or believed that it would incur, debts beyond its ability to pay as such debts matured or intended to hinder, delay, or defraud its creditors, such court could, under state or federal fraudulent transfer law, avoid the guarantee and order that any payments made by AT&T Capital pursuant to the guarantee be returned to AT&T Capital or to a fund for the benefit of its creditors. A court could also subordinate the guarantee to all existing and future indebtedness of AT&T Capital, the effect of which would be to entitle AT&T Capital's other creditors to be paid in full before any payment could be made on AT&T Capital's guarantee of the Exchange Notes. Newcourt and AT&T Capital believe that the issuance of the guarantee by AT&T Capital will not render AT&T Capital insolvent; however, we are not certain that a court would agree with that belief or that a court would not void AT&T Capital's guarantee on grounds other than insolvency. ALLOWANCE FOR CREDIT LOSSES MAY NOT BE ADEQUATE; ESTIMATED RESIDUAL VALUES MAY NOT BE REALIZED In connection with origination of finance receivables, capital leases and operating leases, Newcourt and AT&T Capital are subject to the risk that our allowances for credit losses may not be enough to cover ultimate losses. If our allowance is not adequate to cover our credit losses actually incurred, Newcourt's and AT&T Capital's results of operations and financial condition may be materially adversely affected. In addition, the estimated residual values may not be realized at the end of the lease terms and realization of these residual values has historically been a significant element of the net income of AT&T Capital. If Newcourt and/or AT&T Capital fail to realize the estimated residual values, their results of operations and financial constitution may be materially adversely affected. 12 NEWCOURT IS SUBJECT TO SIGNIFICANT FOREIGN CURRENCY EXCHANGE RISK Newcourt operates in twenty-six countries and, as a result, is subject to the effects of fluctuations in foreign currency exchange rates. If these foreign currency exchange rates move adverse to Newcourt's reporting currency, it could have a material adverse impact on Newcourt's financial position and results of operations. PENDING COMBINATION WITH THE CIT GROUP, INC. COULD DISTRACT NEWCOURT FROM ITS BUSINESS AND RESULT IN LOSS OF PERSONNEL AND DISRUPTION OF OPERATIONS Newcourt has entered into an agreement providing for a business combination with The CIT Group. See 'Prospectus Summary -- Recent Developments.' Although we are not certain that the proposed business combination of CIT and Newcourt will be completed, preparing for the completion of this combination and, if completed, integration of Newcourt and The CIT Group will require a substantial amount of management's time. Diversion of management attention from Newcourt's existing business as well as problems that may arise in connection with the integration of Newcourt's and The CIT Group's operations may have a material adverse impact on Newcourt's revenues and results of operations. The integration of Newcourt and The CIT Group may result in additional expenses which could negatively impact Newcourt's results of operations. Further, the uncertainty created by the combination may result in the loss of management and other employees. The unavailability of these people and the resulting disruption in Newcourt's operations could have a material adverse effect on Newcourt's business. See 'Newcourt -- Announced Acquisition of Newcourt.' The proposed transaction involves the integration of two companies that have different corporate cultures and that have previously operated independently. In addition, the composition of the combined company's management will be new. The success of the combined company will depend to a significant degree on the compatability of key executives and its ability to retain highly-skilled personnel. It is not certain that the two companies will be able to integrate their operations without encountering difficulties, including incompatability of key executives, the loss of key employees and customers, the disruption of our respective ongoing businesses or possible inconsistencies in systems, standards, procedures and policies. UNCERTAINTY AS TO READINESS FOR YEAR 2000 AND POTENTIAL ADVERSE EFFECT ON FINANCIAL PERFORMANCE The 'Year 2000 issue' arises from widespread use of computer programs that rely on two-digit date codes to perform computations or decision-making functions. Newcourt and AT&T Capital are addressing the Year 2000 issue from a global perspective. In early 1998, we established a global Year 2000 Program Office to provide oversight from both a business and technical perspective. The program coordinates vendors, consultants and regional Year 2000 resources. We converted our critical systems in 1998. We will convert remaining systems and conduct compliance testing and certification in 1999. We plan to consolidate our operations onto a limited set of identified Year 2000 compliant systems in order to achieve operational efficiencies and to minimize any potential problems or costs due to the Year 2000 issue. We do not anticipate that the total cost of these Year 2000 compliance activities will be material to our financial position or results of operations in any given year. However, we cannot be certain that our compliance activities will be sufficient to address all possible effects of the Year 2000 issue. Significant Year 2000 failures in Newcourt's or AT&T Capital's systems or in the systems of third parties (or third parties upon whom they depend) could have a material adverse effect on Newcourt's or AT&T Capital's, respectively, financial condition and results of operations. THERE IS NO PUBLIC MARKET FOR THE EXCHANGE NOTES We do not intend to list the Exchange Notes on any securities exchange. The notes you currently own are eligible for trading in the PORTAL market of the National Association of Securities Dealers, Inc. Market making activity, if any, may be limited during the exchange offer. 13 THE CONSEQUENCE OF FAILURE TO EXCHANGE YOUR NOTES FOR EXCHANGE NOTES IS CONTINUED RESTRICTIONS ON YOUR ABILITY TO RESELL YOUR NOTES If you do not exchange your notes for the Exchange Notes pursuant to the exchange offer, you will continue to be subject to restrictions on transfer of your notes. The restrictions on transfer of your notes arise because we issued the notes pursuant to exemptions from, or in transactions not subject to, the registration requirements of the Securities Act and applicable state securities laws. In general, you may only offer or sell the notes if they are registered under the Securities Act and applicable state securities laws, or offered and sold pursuant to an exemption from such requirements. We do not intend to register the notes under the Securities Act. In addition, if you exchange your notes in the exchange offer for the purpose of participating in a distribution of the Exchange Notes, you may be deemed to have received restricted securities and, if so, will be required to comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale transaction. To the extent notes are tendered and accepted in the exchange offer, the trading market, if any, for the notes would be adversely affected. OTHER RISKS You should carefully review the risk factors described in the other documents we file from time to time with the Canadian securities regulatory authorities and the SEC, including those risk factors set forth in Form 40-F relating to our Annual Report to the Shareholders for the year ended December 31, 1998. USE OF PROCEEDS Newcourt will not receive any proceeds from this exchange offer. We used the net proceeds received from the offering of the notes (approximately U.S. $297.4 million, after deducting the estimated expenses of the offering of the notes) primarily to finance installment sale and lease agreements with respect to direct financing programs and to repay some of our debts including Newcourt debt securities as they became due. NEWCOURT BUSINESS Newcourt possesses asset management and processing skills, systems capabilities, a broad range of clients, a solid credit underwriting performance and a consistent operating history. Newcourt originates asset finance business through innovative financing techniques. We provide focused client services and complementary product offerings. Newcourt has a conservative risk management culture. Newcourt has organized its activities and operations around three core businesses: (1) Newcourt Financial; (2) Newcourt Capital; and (3) Newcourt Services. Newcourt Financial. Newcourt Financial, our commercial finance business, provides asset-based sales and inventory financing for a variety of equipment to both vendors and customers. Newcourt Financial offers these services through select strategic relationships with equipment manufacturers, dealers and distributors and certain professional associations and organizations. Newcourt Financial's strategy focuses on the creation, maintenance and enhancement of vendor programs ensuring its position as the premier provider of global asset based financial products. Newcourt Financial focuses on the following sectors: Transportation and Industrial Finance -- provides inventory and term financing in North America in the transportation, construction, industrial and fleet vehicle leasing marketplaces; 14 Technology Finance -- provides direct and vendor financing in North America to manufacturers, distributors and resellers of information technology hardware and software and to their customers; Telecommunications Finance -- provides vendor financing in North America to the telecommunication industry under an exclusive international vendor program with Lucent Technologies Inc.; Business Finance -- provides asset-based sales and inventory financing to vendors and customers in the commercial, industrial, health care and retail finance markets in North America; Specialty Finance -- provides a variety of financial products to the small business and health care markets in North America through micro-balance leasing, government supported (SBA and SBLA) programs and intermediary financial services; Technology Services -- provides other Newcourt business units with the ability to underwrite operating leases and rental products for the information technology business sector; and International/Joint Ventures and Operations -- provides specialized support in Europe, Asia Pacific and Latin America for Newcourt's established vendor programs and develops and manages dedicated joint venture structures. Newcourt Capital. Newcourt Capital is our corporate finance business which provides asset-based financing for high value assets as well as related advisory services. Newcourt Capital's customers include equipment manufacturers, corporate clients, governments and public sector agencies. Newcourt Capital works with a growing list of international clients, including major corporations, governments and agencies. Newcourt Capital focuses on the following sectors: Aerospace Finance -- provides financial services in Canada, the United States and Europe to both the commercial aviation market, with an emphasis on the regional airline industry, and the general aviation market, with an emphasis on the corporate aircraft and helicopter market segments; Rail Finance -- provides financing and advisory services to railroads and industrial rail shippers in Canada and the United States; Public Sector Finance -- provides financing and advisory services in Canada, the United Kingdom and internationally to governments, public sector agencies and corporate clients in the infrastructure and institutional health care sectors; Project Finance -- provides limited or non-recourse project specific financing for institutional and corporate clients in North America and the United Kingdom; Structured Finance -- provides structure financing services in Canada, the United States and Europe, including cross-border leases, single investor leases, synthetic leases and off-balance sheet financings; Media and Communications Finance -- provides debt financing services to the communications market and various media sectors in North America; Business Finance -- provides financing in North America for acquisitions, buy-outs and recapitalizations which are done in conjunction with existing management teams and/or established financial buyers of companies. Newcourt Services. Newcourt Services is our service business responsible for providing cost effective control, growth and support services to Newcourt Financial and Newcourt Capital. Newcourt Services consists of the following corporate functions: Treasury, Credit and Risk Management, Financial Reporting and Administration, Human Resources, 15 Communications & Marketing, Tax Planning and Compliance, Systems Development, and Quality Assurance. Newcourt's long-term debt is rated 'Baa3' by Moody's Investors Services Inc. and 'BBB' by Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies. ANNOUNCED ACQUISITION OF NEWCOURT On March 8, 1999, Newcourt announced that it had entered into an Agreement and Plan of Reorganization with The CIT Group, Inc. pursuant to which the outstanding common shares of Newcourt will be converted into either common stock of The CIT Group, Inc. or, in the case of shares held by Canadian residents who so elect, into a new class of stock exchangeable into common stock of The CIT Group, Inc. and Newcourt will become a wholly-owned subsidiary of The CIT Group, Inc. On June 15, 1999, Newcourt and The CIT Group, Inc. announced that they had entered into an Amendment to the Agreement and Plan of Reorganization. On August 5, 1999, Newcourt and The CIT Group, Inc. announced that they had revised their agreement and had entered into an Amended and Restated Agreement and Plan of Reorganization. Completion of the transaction is subject to a number of conditions set forth in the Agreement and Plan of Reorganization, as amended and restated, which is on file with the SEC and which is incorporated by reference herein. This description of the Agreement and Plan of Reorganization, as amended and restated, is qualified in its entirety by reference to the full and complete text of the agreement. The parties are not certain whether or when the transaction contemplated by the Agreement and Plan of Reorganization, as amended and restated, will be completed. We cannot be certain that the parties will be able to satisfy all of the conditions to the completion of the acquisition of Newcourt by CIT specified in the Agreement and Plan of Reorganization, as amended and restated, or that the transaction will be completed in accordance with the terms of the agreement with CIT. Preparing for the consummation of this combination and, if completed, integration of Newcourt and The CIT Group, Inc. will require a substantial amount of management's time. Diversion of management attention from Newcourt's existing business as well as problems that may arise in connection with the integration of Newcourt's and The CIT Group, Inc.'s operations may have a material adverse impact on Newcourt's revenues and results of operations. The integration of Newcourt and The CIT Group may result in additional expenses which could negatively impact Newcourt's results of operations. Further, the uncertainty created by the combination may result in the loss of management and other employees. The unavailability of such persons and the resulting disruption in Newcourt's operations could have a material adverse effect on Newcourt's business. AT&T CAPITAL AT&T Capital is a full-service, diversified equipment leasing and finance company that operates principally in the United States and also has operations in the Asia/Pacific region, Mexico and South America. AT&T Capital is one of the largest equipment leasing and finance companies in the United States and is the largest lessor of telecommunications equipment in the United States, in each case, based on the aggregate value of equipment leased or financed. AT&T Capital, a Delaware corporation, is a wholly owned subsidiary of Newcourt Credit Group USA Inc., which in turn is a wholly owned subsidiary of Newcourt. AT&T Capital, through certain of the originators, leases and finances a wide variety of equipment, including telecommunications equipment (such as private branch exchanges, telephone systems and voice processing units), information technology equipment (such as personal computers, retail point of sale systems and automated teller machines), general office, manufacturing and medical equipment, and transportation equipment. In addition, the group provides franchise financing for franchises and financing collateralized by real estate. As of December 31, 1998, AT&T Capital consolidated portfolio assets (investment in finance receivables, capital leases and operating leases) were comprised of, or collateralized by, general equipment, information technology equipment, 16 telecommunications equipment, loans secured by real estate and transportation equipment. AT&T Capital's leasing and financing services are marketed (i) to customers of equipment manufacturers, distributors and dealers with which AT&T Capital has a marketing relationship for financing services and (ii) directly to end-users of equipment. AT&T Capital's approximately 500,000 customers include large global companies, small and mid-sized businesses and federal, state and local governments and their agencies. As of June 30, 1999, AT&T Capital had, on a consolidated basis, total assets of U.S. $10.4 billion, total liabilities of U.S. $9.5 billion and net income for the six months ended June 30, 1999 of U.S. $50.8 million. As of December 31, 1998, AT&T Capital had, on a consolidated basis, total assets of U.S. $10.8 billion, total liabilities of U.S. $9.9 billion and net income for the year ended December 31, 1998 of U.S. $97.5 million. AT&T Capital was founded in 1985 by AT&T Corp. as a captive finance company to assist AT&T Corp.'s equipment marketing and sales efforts by providing its customers with sophisticated financing. AT&T Capital is no longer owned in part or affiliated with AT&T Corp. THE EXCHANGE OFFER PURPOSE AND EFFECT OF THE EXCHANGE OFFER The sole purpose of this exchange offer is to fulfill our obligations with respect to the registration of the notes. We will keep this exchange offer open for at least 20 business days. If you take part in this exchange offer, you will receive an Exchange Note in the same principal amount as each note you surrender to us. Interest on each Exchange Note will accrue from the last interest payment date on which interest was paid on the tendered notes or, if no interest has been paid on the tendered note, from the date of the original issue of the tendered note. Under existing SEC interpretations, the Exchange Notes would in general be freely transferable after the exchange offer without further compliance with the registration and prospectus delivery requirements under the Securities Act. However, any purchaser of the notes who is an affiliate of Newcourt or AT&T Capital or who intends to participate in this exchange offer for the purpose of distributing Exchange Notes will not be able to tender any notes in the exchange offer, and those purchasers must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any sale or transfer of the notes, unless the sale or transfer is made under an exemption from such requirements. Moreover, a broker-dealer who acquired notes for its own account as a result of market-making activities or other trading activities must deliver a prospectus meeting the requirements of the Securities Act in connection with the resale of the Exchange Notes. Newcourt has agreed for a period of at least 180 days after completion of this exchange offer to make available a prospectus meeting the requirements of the Securities Act to any broker-dealer for use in connection with a resale of the Exchange Notes. A broker-dealer that delivers a prospectus to purchasers in connection with resales will be subject to some of the civil liability provisions under the Securities Act and will be bound by the provisions of the registration rights agreement. If you want to replace your notes with Exchange Notes by participating in this exchange offer, you will be required to certify that (1) any Exchange Notes you may receive will be acquired in the ordinary course of your business, (2) you are not engaged in, and do not intend to engage in, and have no arrangement with any person to participate in the distribution of the Exchange Notes and (3) you are not an affiliate of Newcourt or AT&T Capital. 17 TERMS OF THE EXCHANGE We are offering to exchange $1,000 in principal amount of Exchange Notes for each $1,000 in principal amount of your notes. This offer is made on the terms and subject to the conditions set forth in this prospectus and the Letter of Transmittal accompanying the registration statement and this prospectus. The terms of the Exchange Notes are substantially identical to the terms of your notes except that (1) your ability to transfer the Exchange Notes will not be restricted and (2) you will not be entitled to the same registration rights and liquidated damages provisions as you were prior to this exchange offer, regardless of whether or not you choose to participate in this exchange offer. The Exchange Notes will evidence the same debt as the notes you currently own and will be entitled to the benefits of the Indenture. See 'Description of Exchange Notes.' This exchange offer is not conditioned upon any minimum aggregate principal amount of notes being offered by you or accepted by us for exchange. Resales. Based on our view of interpretations set forth in no-action letters issued by the SEC, we believe that you may resell or otherwise transfer the Exchange Notes unless you are (1) an affiliate of Newcourt or AT&T Capital, (2) a broker-dealer who acquired notes directly from Newcourt or AT&T Capital or (3) a broker-dealer who acquired notes as a result of market making or other trading activities. In connection with a resale of the Exchange Notes, you will not have to comply with the registration and prospectus delivery provisions of the Securities Act so long as you acquire the notes in the ordinary course of your business, and you are not engaged in, and do not intend to engage in, and have no arrangement or understanding with any person to participate in, a distribution of your Exchange Notes. Resales by broker-dealers. Any broker-dealer that resells Exchange Notes that were received by it for its own account pursuant to this exchange offer and any broker or dealer that participates in a distribution of such Exchange Notes may be deemed to be an 'underwriter' under the Securities Act. As a result, any profit, commissions or concessions received on such a resale may be deemed to be underwriting compensation under the Securities Act. Each broker-dealer that receives Exchange Notes for its own account pursuant to this exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of those Exchange Notes. The Letter of Transmittal states that by so acknowledging, and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an 'underwriter' within the meaning of the Securities Act. Broker-dealers who acquired notes as a result of market making or other trading activities may use this prospectus, as supplemented or amended, in connection with resales of Exchange Notes. Newcourt has agreed that, for a period of 180 days after the registration statement is declared effective, it will make this prospectus available to any broker-dealer for use in connection with any such resale. Any holder who tenders in the exchange offer for the purpose of participating in a distribution of the Exchange Notes or any other holder that cannot rely upon our interpretations of SEC no-action letters must comply with the registration and prospectus delivery requirements of the Securities Act in connection with a secondary resale transaction. Commissions and fees. You will not be required to pay brokerage commissions or fees or, subject to the instructions in the Letter of Transmittal, transfer taxes with respect to the exchange of your notes. Interest. The Exchange Notes will bear interest from the most recent date to which interest has been paid on the notes you currently own, or if no interest has been paid, the initial issuance date of the old notes (December 15, 1998) at a rate of 7.125% per annum, payable semi-annually on June 15 and December 15 of each year, commencing December 15, 1999. EXPIRATION DATE; EXTENSIONS; TERMINATION; AMENDMENTS This exchange offer expires at 5:00 p.m., New York City time, on September 15, 1999 unless we decide to extend the expiration date. We may extend the exchange offer at any time prior to 18 the expiration date by giving written notice to The Chase Manhattan Bank, as exchange agent, and by timely public announcement communicated by no later than 5:00 p.m. on the next business day following the expiration date, unless otherwise required by applicable law or regulation, by making a release to the Dow Jones News Service. During an extension of the exchange offer, all notes previously tendered pursuant to the exchange offer will remain subject to the exchange offer. The initial exchange date will be the third business day following the expiration date or as soon thereafter as practicable. We expressly reserve the right to (1) terminate the exchange offer and not accept any notes for any reason, including if any of the events set forth below under ' -- Conditions to the Exchange Offer' shall have occurred and (2) amend the terms of this exchange offer in any manner, whether before or after any tender of notes. If any termination or amendment occurs, we will notify the exchange agent in writing and will either issue a press release or give written notice to you as promptly as practicable. Unless we terminate the exchange offer prior to 5:00 p.m., New York City time, on the expiration date, we will exchange the notes you currently own for Exchange Notes on the third business day following the expiration date or as soon thereafter as practicable. HOW TO TENDER You may tender your notes for exchange by following the procedures outlined below. By tendering your notes, you are agreeing to the terms and conditions contained in this prospectus and the Letter of Transmittal. GENERAL PROCEDURES You may tender your notes by either: (1) completing and signing the Letter of Transmittal and delivering it by mail or facsimile (unless an agent's message (as defined below) is transmitted in lieu thereof), together with your notes and any required signature guarantees (or a timely confirmation of a book-entry transfer (a 'Book-Entry Confirmation') pursuant to the procedure described below), to The Chase Manhattan Bank, acting as the exchange agent, at its address set forth under the heading ' -- Exchange Agent' herein before the expiration date, or (2) complying with the guaranteed delivery procedures described below. If the Exchange Notes are to be issued (and any untendered notes are to be reissued) in the name of the registered holder of the notes and that holder has signed the Letter of Transmittal, a signature guarantee is not required. In any other case, your notes must be endorsed or accompanied by written instruments of transfer satisfactory to us signed by the registered holder and the signature on the endorsement or instrument of transfer must be guaranteed by an eligible institution, such as a bank, broker, dealer, credit union, savings association, clearing agency or other institution (each an 'eligible institution') that is a member of a recognized signature guarantee medallion program within the meaning of Rule 17Ad-15 under the Exchange Act. If you want your notes to be delivered to an address other than that of a registered holder appearing on the note register for the notes you currently own, the signature on the Letter of Transmittal must also be guaranteed by an eligible institution. If your notes are registered in the name of a broker, dealer, commercial bank, trust company or other nominee and you want to tender your notes you should contact that institution right away and instruct them to tender your notes on your behalf. If you want to tender your notes yourself, you must, prior to completing and executing the Letter of Transmittal and delivering your notes, either make arrangements to register ownership of the notes in your name or follow the procedures described in the immediately preceding paragraph. The transfer of record ownership to your name may take considerable time. If you do not provide the exchange agent with your taxpayer identification number and certify that that number is correct, the exchange agent will withhold 31% of the amount payable to you, unless a tax exemption concerning 'backup withholding' otherwise applies. Unless such an 19 exemption applies, you should complete and sign the main signature form and the Substitute Form W-9 which are part of the Letter of Transmittal to avoid such backup withholding. DELIVERY OF NOTES TO THE EXCHANGE AGENT THROUGH THE DEPOSITORY TRUST COMPANY The exchange agent will establish an account for the notes at The Depository Trust Company within two days after delivery of this prospectus to you. Any financial institution that is a participant in The Depository Trust Company system may make book-entry delivery of your notes into the exchange agent's account at The Depository Trust Company. However, you still must either (1) complete and sign the documents as described above or transmit an agent's message in lieu thereof or (2) follow the guaranteed delivery procedures described below. Tenders by book-entry transfer may also be made by delivering an agent's message in lieu of the Letter of Transmittal. The term 'agent's message' means a message, transmitted by The Depository Trust Company to and received by the Exchange Agent and forming a part of a Book-Entry Confirmation, which states that The Depository Trust Company has received an express acknowledgment from the tendering Participant, which acknowledgment states that such Participant has received and agrees to be bound by the Letter of Transmittal and that we may enforce the Letter of Transmittal against such Participant. YOU ARE RESPONSIBLE FOR DELIVERY OF YOUR NOTES TO US BY THE EXPIRATION DATE. IF YOU ARE SENDING YOUR NOTES BY MAIL, WE RECOMMEND THAT YOU USE INSURED REGISTERED MAIL, RETURN RECEIPT REQUESTED, AND THAT YOU MAIL YOUR NOTES WELL IN ADVANCE OF THE EXPIRATION DATE. FACSIMILE AND GUARANTEED DELIVERY PROCEDURES If you want to exchange your notes and your notes are not immediately available or you do not have enough time to get your notes to the exchange agent before the expiration of the offer, you may still participate by complying with the following conditions. An eligible institution, on your behalf, must deliver a duly executed Letter of Transmittal (or facsimile thereof) (or agent's message in lieu thereof) and a letter, telegram or facsimile, a form of which is available from the exchange agent, to the exchange agent prior to the expiration date, which sets forth: your name and address; the amount of notes you want to exchange; the names in which the notes are registered; if possible, the certificate numbers of the notes being tendered; and a guarantee that, within three NYSE trading days, the notes being exchanged and all other documentation required by the Letter of Transmittal will be delivered to the exchange agent. Your tender will be completed once the exchange agent receives your completed Letter of Transmittal (or agent's message in lieu), all other documentation required by the Letter of Transmittal and the notes you currently own. VALIDITY OF TENDERS We will make all decisions as to the validity, form, eligibility, timing and acceptance of all tenders of notes. We reserve the right to reject any or all tenders which are not in the proper form or which we, or our counsel, determine is unlawful. We also reserve the right to waive any of the conditions of this exchange offer. We may choose to accept tenders from some holders despite defects or irregularities in those tenders, and not accept tenders having the same defects or irregularities from other holders. No one has any duty to notify you of any defects or irregularities in your tender. Our interpretation of the terms and conditions of this exchange offer, including the Letter of Transmittal, will be final and binding. 20 TERMS AND CONDITIONS OF THE LETTER OF TRANSMITTAL The Letter of Transmittal contains, among other things, the following terms and conditions, which are part of this exchange offer. A party tendering notes for exchange (the 'Transferor') exchanges, assigns and transfers the notes to Newcourt and irrevocably constitutes and appoints the exchange agent as the Transferor's agent and attorney-in-fact to cause the notes to be assigned, transferred and exchanged. The Transferor represents and warrants that it has full power and authority to tender, exchange, assign and transfer the notes and to acquire Exchange Notes issuable upon the exchange of such tendered notes, and that, when the same are accepted for exchange, Newcourt will acquire good and unencumbered title to the tendered notes, free and clear of all liens, restrictions, charges and encumbrances and not subject to any adverse claim. The Transferor also warrants that it will, upon request, execute and deliver any additional documents deemed by Newcourt to be necessary or desirable to complete the exchange, assignment and transfer of tendered notes. The Transferor further agrees that acceptance of any tendered notes by Newcourt and the issuance of Exchange Notes in exchange therefor shall constitute performance in full by Newcourt of its obligations under the registration rights agreement and that Newcourt shall have no further obligations or liabilities under that agreement (except in certain limited circumstances). All authority conferred by the Transferor will survive the death or incapacity of the Transferor and every obligation of the Transferor shall be binding upon the heirs, legal representatives, successors, assigns, executors and administrators of such Transferor. By tendering notes and executing the Letter of Transmittal or transmitting an agent's message in lieu thereof, you are certifying that any Exchange Notes to be received by you will be acquired in the ordinary course of your business, you have no arrangement with any person to participate in the distribution of the Exchange Notes, you are not an 'affiliate,' as defined in Rule 405 of the Securities Act, of Newcourt or AT&T Capital, or if you are an affiliate of Newcourt or AT&T Capital, you will comply with the registration and prospectus delivery requirements of the Securities Act, and you are not a broker-dealer, or if you are a broker-dealer, you are not engaged in, and do not intend to engage in, the distribution of the Exchange Notes, or if you are a broker-dealer that will receive Exchange Notes for your own account in exchange for notes that were acquired as a result of market making activities or other trading activities, you will deliver a prospectus in connection with any resale of your Exchange Notes. WITHDRAWAL RIGHTS You may withdraw your tender of your notes at any time prior to the expiration date. For a withdrawal to be effective, a written or facsimile transmission notice of withdrawal must be received by the exchange agent prior to the expiration date. Any notice of withdrawal must specify: (1) the person named in the Letter of Transmittal as having tendered notes to be withdrawn, (2) the certificate numbers of notes to be withdrawn, (3) the principal amount of notes to be withdrawn, 21 (4) a statement that you are withdrawing your election to have your notes exchanged, and (5) the name of the registered holder of the notes. Also, the notice of withdrawal must be signed by the holder in the same manner as the original signature on the Letter of Transmittal (including any required signature guarantees) or be accompanied by evidence satisfactory to us that the person withdrawing the tender has succeeded to the beneficial ownership of the notes being withdrawn. The exchange agent will return the properly withdrawn notes promptly after it receives notice of withdrawal. All questions as to the validity of notices of withdrawals, including time of receipt, will be determined by Newcourt, and its determination will be final and binding. ACCEPTANCE OF NOTES FOR EXCHANGE; DELIVERY OF EXCHANGE NOTES On the terms and subject to the conditions of this exchange offer, we will accept for exchange notes validly tendered and not withdrawn and we will issue the Exchange Notes on the third business day following the expiration date of the exchange offer or as soon thereafter as practicable. For the purposes of this exchange offer, Newcourt shall be deemed to have accepted for exchange validly tendered notes when, as and if Newcourt has given written notice thereof to the exchange agent. The exchange agent will act as your agent for the purposes of receiving Exchange Notes from Newcourt and causing the notes to be assigned, transferred and exchanged. Upon the terms and subject to the conditions of this exchange offer, the exchange agent will deliver to you Exchange Notes in exchange for your tendered notes accepted for exchange by Newcourt promptly after acceptance by us of such tendered notes. Tendered notes not accepted for exchange by us will be returned without expense: (1) to you; or (2) in the case of notes tendered by book-entry transfer into the exchange agent's account at The Depository Trust Company pursuant to the procedures described above, such non-exchanged notes will be credited to an account maintained with The Depository Trust Company promptly following the expiration date; or (3) if Newcourt terminates this exchange offer prior to the expiration date, promptly after the exchange offer is so terminated. CONDITIONS TO THE EXCHANGE OFFER Notwithstanding any other provision of this exchange offer, or any extension of this exchange offer, Newcourt will not be required to issue Exchange Notes in respect of any properly tendered notes not previously accepted, Newcourt may terminate this exchange offer or, at its option, modify or otherwise amend the exchange offer. Newcourt may terminate or modify or otherwise amend the exchange offer as follows: (1) Newcourt may terminate the exchange offer by oral (promptly confirmed in writing) or written notice to the exchange agent and by making a timely public announcement communicated by no later than 5:00 p.m. on the next business day following the expiration date, by making a release to the Dow Jones News Service; (2) Newcourt may modify or amend the exchange offer, if any of the folllowing occur: (a) a lawsuit is threatened, instituted or pending or an injunction, order or decree is issued by any court, governmental agency or regulatory authority, agency or commission that would interfere with, delay, prohibit or seek damages relating to the exchange offer; (b) a statute, rule, reglation or order or injunction is sought, proposed, introduced, enacted, promulgated or deemed applicable to this exchange offer by any government, governmental authority, agency or court commission that would delay, prohibit or seek damages relating to the exchange offer or might result in the holders of Exchange Notes having additional obligations relating to resales and transfers of Exchange Notes than described under the heading ' -- Terms of the Exchange' in this section of the Prospectus or otherwise make Newcourt deem it inadvisable to proceed with this exchange offer; or 22 (c) a material adverse change occurs in the business, condition, operations or prospects of Newcourt. These conditions benefit Newcourt only and not the holders of the notes and only Newcourt may assert these rights with respect to all or any portion of this exchange offer regardless of the circumstances. These rights are available to Newcourt at any time and each right will be deemed an ongoing right which may be asserted at any time or from time to time. In addition, we have reserved the right, notwithstanding the satisfaction of each of the foregoing conditions, to terminate or amend this exchange offer. Any determination by Newcourt concerning the fulfillment or nonfulfillment of any conditions will be final and binding upon all parties. In addition, Newcourt will not accept for exchange any notes tendered and no Exchange Notes will be issued in exchange for any tendered notes, if at such time any stop order shall be threatened or in effect with respect to the registration statement of which this prospectus constitutes a part or qualification of the Indenture under the Trust Indenture Act of 1939. EXCHANGE AGENT The Chase Manhattan Bank has been appointed as the exchange agent for this exchange offer. Letters of Transmittal, whether sent by mail, overnight delivery, hand delivery or facsimile must be addressed to the exchange agent at: The Chase Manhattan Bank 55 Water Street New York, New York 10041 Attention: Carlos Esteves Phone: 212-638-0828 Facsimile: 212-638-7380
DELIVERY TO ANY OTHER ADDRESS, OR TRANSMISSIONS OF INSTRUCTIONS VIA A FACSIMILE OR TELEX NUMBER OTHER THAN THE ONE SPECIFIED, WILL NOT BE ACCEPTED AS A VALID DELIVERY. EXPENSES We have not retained any dealer-manager or similar agent in connection with this exchange offer and we will not make any payments to brokers, dealers or others for soliciting acceptances of the exchange offer. We will, however, pay the exchange agent normal fees for its services and will reimburse it for reasonable out-of-pocket expenses. We will also pay brokerage houses and other custodians, nominees and fiduciaries the reasonable out-of-pocket expenses incurred by them in forwarding tenders for their customers. The expenses to be incurred in connection with this exchange offer, including the fees and expenses of the exchange agent and printing, accounting, legal fees and miscellaneous expenses will be paid by Newcourt and are estimated to be approximately $425,000. SOLICITATION OF TENDERS No person has been authorized to give any information or to make any representations in connection with this exchange offer other than those contained in this prospectus. If you receive any other information, you should not rely on that information as having been authorized by us. You should not assume that, because of our delivery of this prospectus or any exchange of tendered notes by us, that the information contained in this prospectus regarding Newcourt or AT&T Capital has not changed since the date as of such information is given. We are not making this exchange offer in any jurisdiction where to do so would not be in compliance with the laws of that jurisdiction. However, we may, at our discretion, take any action we deem necessary to make this exchange offer in any such jurisdiction in order to extend the exchange offer to holders of notes in such jurisdiction. Where required by applicable law, this exchange offer is being made on our behalf by one or more registered brokers or dealers that are licensed under the laws of that jurisdiction. 23 APPRAISAL RIGHTS HOLDERS OF NOTES WILL NOT HAVE DISSENTERS' RIGHTS OR APPRAISAL RIGHTS IN CONNECTION WITH THIS EXCHANGE OFFER. OTHER Participation in this exchange offer is voluntary. You should carefully consider whether to accept the terms and conditions described in this prospectus. We urge you to consult your financial and tax advisors in making your decisions on what action to take with respect to this exchange offer. Upon the completion of the exchange of notes made as a result of this exchange offer, we will have fulfilled our obligation contained in the terms of the original notes and the registration rights agreement. Holders of the notes who do not tender their original notes in this exchange offer will no longer be entitled to any rights under the registration rights agreement, as that agreement terminates as a result of the making of this exchange offer. All untendered notes will continue to be subject to the restriction on transfer set forth in the Indenture. Upon the completion of this exchange offer, the trading market, if any, for any remaining original notes could be adversely affected. We may in the future seek to acquire untendered notes in the open market or privately negotiated transactions, through subsequent exchange offers or in other ways. However, we have no present plan to acquire any notes that are not tendered in this exchange offer. 24 DESCRIPTION OF THE EXCHANGE NOTES GENERAL The Exchange Notes constitute a single series and are to be issued under an Indenture dated as of December 15, 1998, between Newcourt and The Chase Manhattan Bank, as trustee (the 'trustee'). We have summarized below some provisions of the Indenture. However, you should look to the Indenture for a full description of the terms and conditions of the Exchange Notes. Section references are to sections of the Indenture. Wherever particular provisions of the Indenture are referred to, you should consider those provisions as part of this prospectus. The Indenture does not limit the total principal amount of debt securities that may be issued pursuant to the Indenture. The Indenture provides that debt securities may be issued by Newcourt at any time in one or more series. Therefore, additional series of debt securities, other than the notes, may be issued by Newcourt. The Indenture also permits Newcourt to specify the form and terms of the debt securities. Newcourt currently has U.S. $300 million total principal amount of debt securities outstanding, including the notes, under the Indenture. The Exchange Notes will be unsecured obligations of Newcourt and will rank equal in right of payment with all other unsecured and unsubordinated indebtedness of Newcourt. At June 30, 1999, Newcourt's consolidated indebtedness, all of which is unsecured and unsubordinated, was approximately U.S. $11.8 billion (C $17.5 billion). The Exchange Notes will, however, be effectively subordinated to the indebtedness and other liabilities of Newcourt's subsidiaries other than AT&T Capital. At June 30, 1999, that indebtedness and other liabilities, including those of AT&T Capital, totaled approximately U.S. $10.3 billion (C $15.1 billion). At this time, we do not intend or plan to increase the amount of this indebtedness in the future, except in connection with the growth of our business. PAYMENTS OF PRINCIPAL AND INTEREST The Exchange Notes will be limited in total principal amount to U.S. $300 million and will mature on December 17, 2003. The Exchange Notes will bear interest from the most recent date to which interest has been paid on the notes you currently own, at 7.125% per annum until the principal is paid or made available to you for payment. Interest will be payable to the person in whose name the Exchange Note is registered at the close of business on the record date with respect to the interest payment date as specified in the Indenture; provided, however, that interest payable at maturity, whether or not the maturity date is an interest payment date, will be payable to the person to whom principal shall be payable. If you hold an Exchange Note that is a book-entry note represented by a global security, all interest payments, except interest due at maturity, will be made to a nominee of The Depository Trust Company. The 'record date' with respect to any interest payment date shall be the date fifteen calendar days prior to that interest payment date. Interest on the Exchange Notes will be payable on June 15 and December 15 (except that the final interest payment date will be December 17, 2003) of each year and at maturity. Interest payments on Exchange Notes shall be the amount of interest accrued from, and including, the date of issue or the last date to which interest has been paid to, but excluding, the next succeeding interest payment date or maturity date, as the case may be. If an interest payment date (other than the maturity date) would otherwise be a day that is not a business day, that interest payment date will be postponed to the next succeeding day that is a business day, except that if that business day falls in the next succeeding calendar month, that interest payment date will be the immediately preceding business day. If the maturity date of the Exchange Notes falls on a day that is not a business day, the required payment of principal, premium, if any, and/or interest will be made on the next succeeding business day as if made on the date such payment was due, and no interest shall accrue on the payment for the period from and after the maturity date to the date of the payment. The Exchange Notes will be issuable as book-entry notes represented by a global security registered in the name of a nominee of The Depository Trust Company as depositary. Except as 25 set forth in 'Book-Entry System' below, book-entry notes will not be issuable as certificates issued in definitive form. The Exchange Notes will be issued in denominations of U.S. $1,000 and any integral multiple of $1,000 in excess thereof. We have designated The Chase Manhattan Bank, acting through its principal corporate trust office in New York, New York, as the registrar and transfer agent for the Exchange Notes, as the paying agent for the Exchange Notes and as the authenticating agent for the Exchange Notes. Principal and premium, if any, and interest will be payable, and the Exchange Notes will be transferable, at the office of the paying agent, 270 Park Avenue, New York, New York 10017 or at such other place or places as may be designated under the Indenture. However, we may, at our option pay interest other than interest due at maturity by check mailed to registered holders (which, in the case of book-entry notes represented by a global security, will be a nominee of the depositary). At the maturity of the Exchange Notes, the principal, together with accrued interest, will be payable in immediately available funds upon surrender of these Exchange Notes at the office of the trustee at such other place or places as may be designated under the Indenture. REDEMPTION, REPURCHASE OR REPAYMENT We do not have the option to redeem the Exchange Notes and you may not request repayment of the Exchange Notes prior to maturity. We may at any time, subject to applicable law, purchase Exchange Notes at any price in the open market or by other means. We may hold, resell or surrender to the trustee for cancellation any Exchange Notes we purchase. However, if we are required to pay an additional amount in accordance with ' -- Certain Covenants -- Payment of Additional Amounts,' we may, on proper notice to you, redeem all the notes and Exchange Notes then outstanding, at their principal amount, together with accrued interest. BOOK-ENTRY SYSTEM Upon issuance, the Exchange Notes will be book-entry notes represented by a single global security. The global security representing the book-entry notes will be deposited with, or on behalf of, The Depository Trust Company and registered in the name of a nominee of the The Depository Trust Company. Except under circumstances described below, book-entry notes will not be exchangeable for certificated notes and will not otherwise be issuable in definitive form. THE DEPOSITARY. The depositary has advised us that it is: a limited-purpose trust company organized under the New York Banking Law, a 'banking organization' within the meaning of the New York Banking Law, a member of the Federal Reserve System, a 'clearing corporation' within the meaning of the New York Uniform Commercial Code, and a 'clearing agency' registered pursuant to the provisions of Section 17A of the Exchange Act. The depositary's management has advised us that it is aware that some computer applications, systems and the like for processing data that are dependent upon calendar dates, including dates before, on and after January 1, 2000, may encounter 'Year 2000 problems.' The depositary has informed its participants and other members of the financial community that it has developed and is implementing a program so that its computer systems, as the same relate to the timely payment of distributions (including principal and interest payments) to securityholders, book-entry deliveries, and settlement of trades within the depositary, continue to function appropriately. This program includes a technical assessment and a remediation plan, each of which is complete. Additionally, the depositary's plan includes a testing phase, which is expected to be complete within appropriate time frames. 26 However, the depositary's ability to perform properly its services is also dependent upon other parties, including but not limited to issuers and their agents, as well as third-party vendors from whom the depositary licenses software and hardware, and third-party vendors on whom the depositary relies for information or the provision of services, including telecommunication and electrical utility service providers, among others. The depositary has informed the financial community that it is contacting (and will continue to contact) third-party vendors from whom the depositary acquires services to: (i) impress upon them the importance of such services being Year 2000 compliant; and (ii) determine the extent of their efforts for Year 2000 remediation (and, as appropriate, testing) of their services. In addition, the depositary is in the process of developing such contingency plans as it deems appropriate. The depositary holds securities deposited by its participants. The depositary also facilitates the settlement among participants of securities transactions, such as transfers and pledges, in deposited securities through electronic computerized book-entry changes in participants' accounts. It thereby eliminates the need for physical movement of securities. Direct participants include securities brokers and dealers, banks, trust companies, clearing corporations, and certain other organizations. The depositary is owned by a number of its direct participants and by the New York Stock Exchange, Inc., the American Stock Exchange, Inc., and the National Association of Securities Dealers, Inc. (the 'NASD'). Access to the depositary's system is also available to others such as securities brokers and dealers, banks and trust companies that clear through or maintain a custodial relationship with a direct participant, either directly or indirectly. The rules applicable to the depositary and its participants are on file with the SEC. BOOK-ENTRY FORMAT. Upon the issuance of the global security, the depositary will credit on its book-entry registration and transfer system its participants' accounts with their respective principal amounts of the Exchange Notes represented by that global security. The only persons who may own beneficial interests in a global security will be the depositary's participants or persons that hold interests through participants. Ownership of beneficial interests in the global security will be shown on, and the transfer of that ownership will be effected only through, records maintained by the depositary or its nominee, with respect to interests of participants, and on the records of participants, with respect to interests of persons other than participants. The laws of some states may require that certain purchasers of securities take physical delivery of their securities in definitive form. These limits and laws may impair your ability to transfer your interest in a book-entry note. So long as the depositary or its nominee is the registered owner of the global security, the depositary or its nominee, as the case may be, will be considered the sole owner or holder of the Exchange Notes represented by the global security for all purposes under the Indenture. Except as provided below or as we may otherwise agree in our sole discretion, owners of beneficial interests in a global security will not be entitled to have Exchange Notes represented by such global security registered in their names, will not receive or be entitled to receive physical delivery of Exchange Notes in definitive form and will not be considered the owners or holders thereof under the Indenture. Principal, premium, if any, and interest payments on Exchange Notes registered in the name of the depositary or its nominee will be made to the depositary or its nominee, as the case may be, as the registered owner of the global security representing the Exchange Notes. None of Newcourt, the trustee, any paying agent or the registrar for such Exchange Notes will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial interests in such global security for such Exchange Notes or for maintaining, supervising or reviewing any records relating to such beneficial interests. We expect that the depositary for the Exchange Notes or its nominee, upon receipt of any payment of principal, premium or interest, will credit immediately its participants' accounts with payments in amounts proportionate to their respective beneficial interests in the principal amount of the global security for the Exchange Notes as shown on the records of the depositary or its nominee. We also expect that payments by participants to owners of beneficial interest in the global security held through those participants will be governed by standing instructions and 27 customary practices, as is now the case with securities held for the accounts of customers in bearer form or registered in 'street name' (i.e., the name of a securities broker or dealer), and will be the responsibility of those participants. ISSUANCE OF NOTES IN DEFINITIVE FORM. If the depositary is at any time unwilling or unable to continue as depositary and a successor depositary is not appointed by us within 90 days, we will issue Exchange Notes in definitive form in exchange for the entire global security representing the Exchange Notes. In addition, we may at any time determine not to have the Exchange Notes represented by the global security. In such event, we will issue Exchange Notes in definitive form in exchange for the global security representing the Exchange Notes. In any such instance, an owner of a beneficial interest in a global security will be entitled to physical delivery in definitive form of Exchange Notes represented by the global security equal in principal amount to its beneficial interest and to have its Exchange Notes registered in its name. Exchange Notes so issued in definitive form will be issued as registered Exchange Notes in denominations of U.S. $1,000 and any integral multiple of $1,000 in excess thereof. CERTAIN COVENANTS Set forth below is a description of Newcourt's principal covenants contained in the Indenture. The Indenture does not restrict us, other than as set forth below, from engaging in any highly leveraged transaction, reorganization, restructuring, merger or similar transaction, or from incurring additional indebtedness or causing our subsidiaries to incur additional indebtedness, any of which transactions could have an adverse effect on you, as a holder of the Exchange Notes. Consolidation, Merger, Sale or Conveyance of Assets of the Company. Under the Indenture, Newcourt covenants that it will not: merge or consolidate with any other corporation, or sell or convey all or substantially all its assets to any person, other than a sale or conveyance to one of our subsidiaries, unless: (1) either (a) Newcourt is the continuing corporation or (b) if Newcourt is not the continuing corporation, the continuing corporation expressly assumes the due and punctual payment of the principal of, premium, if any, and interest, if any, on all the debt securities and the due and punctual performance and observance of all the covenants and conditions of the Indenture in a manner acceptable to the trustee, and (2) the continuing corporation is not, immediately after the transaction in default in the performance of any covenant or condition. In the case of any such consolidation, merger, sale or conveyance, and following an assumption by the successor corporation, the successor corporation will succeed to and be substituted for Newcourt, with the same effect as if it had been named in the Indenture, and, in the case of any sale or conveyance (other than a conveyance by way of lease), Newcourt will be released and discharged from all obligations and covenants under the Indenture and the Exchange Notes. In the event Newcourt sells or conveys assets to a subsidiary, as permitted, an asset drop-down occurs after the date of the Indenture, any subsequent sale or conveyance of assets by such subsidiary will be deemed to be a sale or conveyance of assets by Newcourt for purposes of the covenant described in this paragraph. (Sections 5.01 and 5.02) The term 'all or substantially all,' which appears in the foregoing covenant, is not defined in the Indenture, and it does not have a precise established definition under applicable law. The application of the covenant may depend on the facts and circumstances of a particular transaction. Accordingly, there may be uncertainty in connection with any particular transaction as to whether a sale or conveyance of all or substantially all of our assets has occurred and thus as to whether we have complied with this covenant. Because New York law governs the Indenture, New York law will govern the interpretation of the term 'all or substantially all.' 28 Limitations on Incurrence of Secured Debt. We will not, nor will we permit any Restricted Subsidiary (as defined below) to: create or incur, or suffer to be incurred or to exist, any Lien on our property or assets, whether now owned or acquired later, or upon any income or profits from those properties or assets, transfer any property for the purpose of subjecting that property to the payment of obligations in priority to the payment of our general creditors, acquire or agree to acquire, or permit any Restricted Subsidiary to acquire, any property or assets upon conditional sales agreements or other title retention devices, without thereupon expressly securing the due and punctual payment of the principal of, premium, if any, and the interest on the debt securities of each Series equally and ratably with any and all other obligations and indebtedness secured by such Lien, so long as any such other obligations and indebtedness shall be so secured, and if and when any of these Liens is created, the debt securities of each Series will be so secured thereby. However, this Section shall neither limit nor be deemed or construed as limiting our right or any Restricted Subsidiary's right to create or incur, or suffer to be incurred or to exist, any one or more of the following Liens: (i) Liens for property taxes and assessments or governmental charges or levies and Liens securing claims or demands of mechanics and materialmen; (ii) Liens of or resulting from any judgment or award, the time for the appeal or petition for rehearing of which shall not have expired, or in respect of which Newcourt or a Restricted Subsidiary shall at any time in good faith be prosecuting an appeal or proceeding for a review and in respect of which a stay of execution pending such appeal or proceeding for review shall have been secured; (iii) Liens incidental to the conduct of business or the ownership or properties and assets (including Liens in connection with worker's compensation, unemployment insurance and other like laws, warehousemen's and solicitors' liens and statutory landlords' liens) and Liens to secure the performance of bids, tenders or trade contracts, or to secure statutory obligations, surety or appeal bonds or other Liens of like general nature incurred in the ordinary course of business and not in connection with the borrowing of money; provided in each case, the obligation secured is not overdue or, if overdue, is being contested in good faith by appropriate actions or proceedings; (iv) Minor survey exceptions, or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Company and the Restricted Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of Newcourt and the Restricted Subsidiaries; (v) Liens securing Debt of a Restricted Subsidiary to the Company or to another Restricted Subsidiary; (vi) Any other Liens (other than the Liens described in clauses (i)-(xvi)) which in the aggregate relate to Debt the aggregate amount of which does not exceed 10% of Consolidated Net Tangible Assets; (vii) Purchase Money Obligations; (viii) Liens on Acquired Financing Assets to secure Secured Subordinated Debt of Newcourt or the Restricted Subsidiaries arising in connection with the acquisition of such Acquired Financing Assets; (ix) Liens securing Non-Recourse Debt of Newcourt or the Restricted Subsidiaries; 29 (x) Liens created or incurred after December 15, 1998 upon any property (the 'Substitute Property') concurrently with the release of a comparable Lien on other property (the 'Released Property'), provided that (A) the fair market value of the Substitute Property shall not exceed the fair market value of the Released Property by more than 110%, (B) the character and use of the Substitute Property shall be substantially equivalent to the character and use of the Released Property, and (C) such substitution shall be without increase in the principal amount of the Debt remaining unpaid as of the date of such substitution which is to be secured by the Lien on such Substitute Property and such remaining unpaid principal amount of such Debt shall not exceed the aggregate fair market value of such Substitute Property and any other property securing such Debt; (xi) Liens on property of, or on any shares of stock or debt of, any corporation existing at the time such corporation becomes a Restricted Subsidiary; (xii) Liens on property, shares of stock, other equity interests, or debt existing at the time of acquisition or repossession thereof by Newcourt or any Restricted Subsidiary; (xiii) Liens on physical property (or any Accounts Receivable arising in connection with the lease thereof), shares of stock, other equity interests, or debt acquired (or, in the case of physical property, constructed) after December 15, 1998 by Newcourt or any Restricted Subsidiary, which liens are created prior to, at the time of, or within one year after such acquisition (or, in the case of physical property, the completion of such construction or commencement of commercial operation of such property, whichever is later) to secure any debt issued, incurred, assumed or guaranteed prior to, at the time of, or within one year after such acquisition (or such completion or commencement, whichever is later) or to secure any other debt issued, incurred, assumed or guaranteed at any time thereafter for the purpose of refinancing all or any part of such debt; (xiv) Liens on Accounts Receivable of Newcourt or any Restricted Subsidiary arising from or in connection with transactions entered into by Newcourt or such Restricted Subsidiary after December 15, 1998 or on Accounts Receivable acquired by Newcourt or such Restricted Subsidiary after such date from others which liens are created prior to, at the time of, or after such Accounts Receivable arise or are acquired: (a) as a result of any guarantee, repurchase or other contingent (direct or indirect) or recourse obligation of the Company or such Restricted Subsidiary in connection with the discounting, sale, assignment, transfer or other disposition of such Accounts Receivable or any interest therein, or (b) to secure or provide for the payment of all or any part of the investment of Newcourt or such Restricted Subsidiary in any such Accounts Receivable (whether or not such Accounts Receivable are the Accounts Receivable on which such liens are created) or the purchase price thereof or to secure any debt (including, without limitation, Non- Recourse Debt) issued, incurred, assumed or guaranteed for the purpose of financing or refinancing all or any part of such investment or purchase price; (xv) any extension, renewal, or replacement of any Lien permitted by the preceding subsections (vi), (vii), (viii), (x), (xi), (xii), (xiii) and (xiv) hereof in respect of the same property theretofore subject to such Lien in connection with the extension, renewal or refinancing of the Debt secured thereby; provided that (A) such Lien shall attached solely to the same such property or Substitute Property, (B) such extension, renewal or refinancing of such Debt shall be without increase in the principal remaining unpaid as of the date of such extension, renewal or refinancing, and (C) the Debt secured by such Lien shall have been incurred within the limitations of the Indenture; and (xvi) any Lien approved by the Holders holding 66 2/3% or more in principal amount of the outstanding debt securities of each Series. (Section 4.03) 'Accounts Receivable' means (i) any accounts receivable (whether or not earned by performance), chattel paper, instruments, documents, general intangibles, trade acceptances, any other rights to receive installment, rental or other payments for, or relating to amounts due or to 30 become due on account of equipment or goods sold or leased or to be sold or leased or services rendered or to be rendered or funds advanced or loaned or to be advanced or loaned and other rights to payment of any kind, (ii) any proceeds of any of the foregoing and (iii) any interest in any property or asset of any kind (whether of the obligor under such Accounts Receivable or any other person) securing the payment of any item listed in clause (i) hereof. (Section 1.01) 'Acquired Financing Assets' means assets (including, but not limited to, securities and receivables) of any Person the acquisition of which was financed in accordance with our credit policies and procedures manual approved from time to time by the Board of Directors. (Section 1.01) 'Capitalized Lease' means any lease the obligation for Rentals with respect to which is required to be capitalized on a consolidated balance sheet of the lessee and its subsidiaries in accordance with GAAP. (Section 1.01) 'Capitalized Rentals' of any Person shall mean as of the date of any determination thereof the amount at which the aggregate Rentals due and to become due under all Capitalized Leases under which such Person is a lessee would be reflected as a liability on a consolidated balance sheet of such Person. (Section 1.01) 'Consolidated Net Tangible Assets' means, at the date of any determination, the total assets appearing on our consolidated balance sheet and its Restricted Subsidiaries as at the end of our most recent fiscal quarter for which such balance sheet is available, prepared in accordance with generally accepted accounting principles, less (a) all current liabilities (obligations whose liquidation is reasonably expected to occur within twelve months), (b) investments in and advances to Subsidiaries other than Restricted Subsidiaries or other entities accounted for on the equity method of accounting and (c) Intangible Assets. (Section 1.01) 'Debt' of any Person shall mean and include all obligations of such Person for money borrowed or which have been incurred in connection with the acquisition of assets which in accordance with GAAP shall be classified upon a balance sheet of such Person as liabilities of such Person, and in any event shall include, without duplication, all (i) Capitalized Rentals and (ii) Guaranties of obligations of others of the character referred to in this definition. (Section 1.01) 'Guaranties' by any Person shall mean all obligations (other than endorsements in the ordinary course of business of negotiable instruments for deposit or collection) of such Person guaranteeing, or in effect guaranteeing, any Indebtedness, dividend or other obligation of any other Person (the 'primary obligor') in any manner, whether directly or indirectly, including, without limitation, all obligations incurred through an agreement, contingent or otherwise, by such Person: (i) to purchase such Indebtedness or obligation or any property or assets constituting security therefor, (ii) to advance or supply funds (x) for the purchase or payment of such Indebtedness or obligation, (y) to maintain working capital or other balance sheet condition or otherwise to advance or make available funds for the purchase or payment of such Indebtedness or obligation, (iii) to lease property or to purchase Shares or other property or services primarily for the purpose of assuring the owner of such Indebtedness or obligation of the ability of the primary obligor to make payment of the Indebtedness or obligation, or (iv) otherwise to assure the owner of the Indebtedness or obligation of the primary obligor against loss in respect thereof. For the purposes of all computations made under this Indenture, a Guaranty in respect of any Debt shall be deemed, without duplication, to be Indebtedness equal to the principal amount of such Debt which has been guaranteed, and a Guaranty in respect of any other obligation or liability or any dividend shall be deemed to be Indebtedness equal to the maximum aggregate amount of such obligation, liability or dividend. (Section 1.01) 'Intangible Assets' means the value (net of any applicable reserves), as shown on or reflected in our balance sheet, of: (i) all trade names, trademarks, licenses, patents, copyrights and goodwill; (ii) organization and development costs; (iii) deferred charges (other than prepaid items such as insurance, taxes, interest, commissions, rents and similar items and tangible assets being amortized); and (iv) unamortized debt discount and expense, less unamortized premium. (Section 1.01) 31 'Lien' means any interest in property securing an obligation owed to, or a claim by, a Person other than the owner of the property, whether such interest is based on the common law, statute or contract, and including but not limited to the security interest line arising from a mortgage, encumbrance, pledge, conditional sale or trust receipt or a lease, consignment or bailment for security purposes. The term 'Lien' shall include reservations, exception, encroachments, easements, rights-of-way, covenants, conditions, restrictions, leases and other title exceptions and encumbrances (including, with respect to shares, shareholder agreements, voting trust agreements, buy-back agreements and all similar arrangements) affecting property. For purposes of the Indenture, Newcourt or any Restricted Subsidiary shall be deemed to be the owner of any property which it has acquired or holds subject to a conditional sale agreement, Capitalized Lease or other arrangement pursuant to which title to the property has been retained by or vested in some other Person for security purposes and such retention or vesting shall constitute a Lien. (Section 1.01) 'Non-Recourse Debt' of Newcourt or any Restricted Subsidiary means any indebtedness for borrowed money of Newcourt or such Restricted Subsidiary, as the case may be, which is secured by any Lien on, or payable solely from the income and proceeds of, any property (including, without limiting the generality of such term, any intangible assets), shares of stock, other equity interests or debt of Newcourt or such Restricted Subsidiary, as the case may be, and which is not a general obligation of Newcourt or Restricted Subsidiary, as the case may be. (Section 1.01) 'Purchase Money Obligations' means Liens incurred to secure the payment of the purchase price incurred in connection with the acquisition of real or personal assets (other than Acquired Financing Assets) useful and intended to be used in carrying on the business of Newcourt or a Restricted Subsidiary, including Liens existing on such assets at the time of acquisition by Newcourt or a Restricted Subsidiary of any business entity then owning such assets, whether or not such existing Liens were given to secure the payment of the purchase price of such assets to which they attach so long as they were not incurred, extended or renewed in contemplation of such acquisition, provided that: (A) the Lien attach solely to such assets acquired or purchased, (B) at the time of acquisition of such assets, the aggregate amount remaining unpaid on all Debt secured by Liens on such assets whether or not assumed by Newcourt or a Restricted Subsidiary shall not exceed an amount equal to the lesser of the total purchase price or fair market value at the time of acquisition of such assets, and (C) all such Debt shall have been incurred within the applicable limitations of this Indenture. 'Rentals' shall mean and include as of the date of any determination thereof all fixed payments (including as such all payments which the lessee is obligated to make to the lessor on termination of the lease or surrender of the property) payable by Newcourt or a Restricted Subsidiary, as lessee or sublessee under a lease of real or personal property, but shall be exclusive of any amounts required to be paid by Newcourt or a Restricted Subsidiary (whether or not designated as rents or additional rents) on account of maintenance, repairs, insurance, taxes and similar charges. Fixed rents under any so-called 'percentage leases' shall be computed solely on the basis of the minimum rents, if any, required to be paid by the lessee regardless of sales volume or gross revenues. 'Restricted Subsidiary' means each Subsidiary of Newcourt organized under the laws of any State of the United States or the District of Columbia or Canada, no substantial portion of the business of which is carried on outside the United States; provided that each Drop-Down Subsidiary will be a Restricted Subsidiary. (Section 1.01) 'Subsidiary' means any corporation more than 50% of the outstanding voting stock of which is owned, directly or indirectly, by Newcourt and/or by one or more other Subsidiaries. For purposes of such definition, 'voting stock' means stock ordinarily having voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency. (Section 1.01) 32 Payment of Additional Amounts. All payments made by us with respect to the notes and the Exchange Notes will be made free and clear of and without withholding or deduction on account of any present or future tax, or other governmental charge imposed by the Government of Canada or of any Canadian province or territory or by any Canadian authority or agency having power to tax (hereinafter 'Taxes'). However, if we are required to withhold or deduct Taxes from any payment made with respect to the notes or the Exchange Notes, we will pay such additional amounts ('Additional Amounts') so that you receive the same net amount as you would have received if the Taxes had not been withheld or deducted; provided that we will not pay any Additional Amounts with respect to a payment made to a holder of Exchange Notes (an 'Excluded Holder'): (a) with which Newcourt does not deal at arm's length (within the meaning of the Income Tax Act (Canada)) at the time of making such payment, (b) which is subject to such Taxes by reason of its being connected with Canada or any province or territory thereof otherwise than by the mere holding of notes or Exchange Notes or the receipt of payments thereunder, or (c) who could lawfully avoid (but has not so avoided) such deduction or withholding by complying, or procuring that any third party complies with, any statutory requirements or by making or procuring that any third party makes a declaration of non-residence or other similar claim for exemption to any relevant tax authority. We will also (1) make the withholding or deduction and (2) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. We will furnish to the trustee within 30 days of when the Taxes are due, certified copies of tax receipts evidencing our payment. EVENTS OF DEFAULT If an event of default in respect of any series of debt securities shall have occurred and be continuing under the Indenture, either the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series may declare the principal of all the securities of that series to be due and payable. (Section 6.01) Events of default in respect of the debt securities of any series are defined in the Indenture as being: default for 90 days in payment of any interest installment when due; unless otherwise specified with respect to the debt securities of any series, default in payment of principal of the debt securities of such series when due; default for 90 days after written notice to Newcourt by the trustee or by the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series in the performance of any other agreement in the debt securities or Indenture in respect of that series; and events of bankruptcy, insolvency and reorganization. (Section 6.01) The Indenture provides that we will, within 120 days after the close of each fiscal year, beginning with the first fiscal year following the issuance of any series of debt securities, file with the trustee a certificate stating whether or not we have complied with all conditions and covenants contained in the Indenture and, if not, specifying each default and the nature of that default. (Section 4.04) The Indenture allows the trustee, subject to the trustee's duty during an event of default to act with the required standard of care, to refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it. (Section 7.01) The Indenture provides that the holders of a majority in aggregate principal amount of the outstanding debt securities of any series affected (with each series voting as a separate class) may direct the time, method and place of conducting proceedings for remedies available 33 to the trustee, or exercising any trust or power conferred on the trustee, in respect of that series. (Section 6.06) Notice. The Indenture requires the trustee to give to the holders of a series notice of all defaults known to it relating to that series of debt securities within 90 days of any default; provided that, except in the case of default in payment on any of the debt securities of that series, the trustee will be protected in withholding notice if it in good faith determines that the withholding of notice is in the interest of the holders of that series. The term 'default' for the purpose of this provision means any event which is, or after notice or passage of time or both would be, an event of default as defined in the Indenture. (Section 7.05) Waiver. The holders of a majority in principal amount of the outstanding debt securities of a series may on behalf of the holders of all debt securities of that series waive any past default or event of default, or compliance with certain provisions of the Indenture, except, among other things, a default in payment of the principal of, or interest on, any of the debt securities of that series. (Sections 6.01 and 6.06) DISCHARGE AND DEFEASANCE Under terms satisfactory to the trustee, we may discharge certain obligations to holders of any series of debt securities issued under the Indenture so long as those securities (1) have not already been delivered to the trustee for cancellation and (2) have either become due and payable or are by their terms due and payable within one year (or scheduled for redemption within one year). We may do so by irrevocably depositing with the trustee as trust funds an amount in cash sufficient to pay at maturity (or upon redemption) the principal of, premium, if any, and interest on those debt securities. (Section 8.01) In the case of any series of debt securities with respect to which the exact amounts (including the currency of payment) of principal of and interest due on that series can be determined at the time of making the deposit referred to below (which include debt securities with a floating or variable rate of interest that cannot exceed a specified or determinable maximum rate), we may at our option also (1) discharge any and all of our obligations to holders of that series of debt securities ('defeasance') on the 91st day after the conditions set forth below have been satisfied, but may not avoid our duty to register the transfer or exchange of that series of debt securities, to replace any temporary, mutilated, destroyed, lost or stolen debt securities of that series or to maintain an office or agency in respect of the series, or (2) be released with respect to that series of debt securities from the obligations imposed by the covenants described under 'Covenants' above ('covenant defeasance'). Defeasance and covenant defeasance may be effected only if, among other things, (1) we irrevocably deposit with the trustee as trust funds (a) money in an amount, (b) in the case of debt securities payable only in U.S. Dollars, U.S. Governmental Obligations (as defined in the Indenture) which through the payment of interest and principal in respect thereof will provide money in an amount, or (c) a combination of (a) and (b), certified by a nationally recognized firm of independent public accountants to be sufficient to pay each installment of principal of and interest on all outstanding debt securities of that series on the dates installments of principal and interest are due; and (2) we deliver to the trustee an opinion of independent counsel to the effect that the holders of the series of debt securities will not recognize income, gain or loss for United States federal income tax purposes as a result of the defeasance or covenant defeasance and will be subject to United States federal income tax on the same amount and in the same manner and at the same time as would have been the case if the defeasance or covenant defeasance had not occurred (which opinion may include or be based on a ruling to that effect received from or published by the Internal Revenue Service). (Section 8.02) 34 MODIFICATION OF THE INDENTURE The Indenture allows Newcourt and the trustee, with the consent of the holders of a majority in principal amount of the outstanding debt securities of each series affected (with such series voting as a separate class), to change the Indenture. In order to change the Indenture after receiving the required consent of holders of any series, Newcourt and the trustee may execute supplemental indentures adding any provisions to or changing or eliminating any of the provisions of the Indenture or modifying the rights of the holders of debt securities of each such series. However, we cannot change, without the consent of all holders affected, among other things, the maturity of any debt securities, the principal amount of those securities, any premium on those securities, the rate or the time of payment of interest thereon, the type of currency in which any debt security is payable, or reduce the aforesaid percentage of outstanding debt securities required to approve any such change. (Sections 9.01 and 9.02) CONCERNING THE TRUSTEE We may from time to time maintain lines of credit, and have other customary banking relationships, with The Chase Manhattan Bank. In addition, The Chase Manhattan Bank is the trustee under the Indentures dated as of April 9, 1990, as of June 1, 1992 each as amended, among AT&T Capital, AT&T Corp., AT&T Capital Holdings, Inc., a wholly-owned subsidiary of AT&T Corp., and The Chase Manhattan Bank, pursuant to which AT&T Capital assumed and AT&T Corp. guaranteed certain medium and long-term debt issued by AT&T Capital Holdings, Inc. As of June 30, 1999, the aggregate outstanding principal amount of such medium and long-term debt was approximately U.S. $41.6 million. Furthermore, The Chase Manhattan Bank is the trustee under the indenture dated as of July 1, 1993, between AT&T Capital and The Chase Manhattan Bank pursuant to which AT&T Capital has issued U.S. $11.4 billion aggregate principal amount of medium-term notes, the trustee under the indenture dated as of April 1, 1998, among AT&T Capital, Newcourt and The Chase Manhattan Bank pursuant to which AT&T Capital has issued U.S. $5.0 billion aggregate principal amount of medium-term notes, the trustee under the indenture dated as of December 15, 1998, between Newcourt and The Chase Manhattan Bank pursuant to which Newcourt has issued U.S. $0.3 billion aggregate principal amount of notes, the trustee under the indenture dated as of February 15, 1999, among AT&T Capital, Newcourt and The Chase Manhattan Bank pursuant to which Newcourt has issued U.S. $1.0 billion aggregate principal amount of notes, and the trustee under the Indenture dated as of March 1, 1999 among AT&T Capital, Newcourt and the Chase Manhattan Bank pursuant to which AT&T Capital has issued U.S. $771 million aggregate principal amount of notes. DESCRIPTION OF THE GUARANTEE AT&T Capital will unconditionally guarantee the due and punctual payment of principal, premium, if any, and interest on the Exchange Notes when and as the same shall become due and payable, whether at maturity, upon redemption or otherwise. The Guarantee will rank equally with all other unsecured and unsubordinated obligations of AT&T Capital. The right of AT&T Capital and, hence, the right of creditors of AT&T Capital, including holders of the Exchange Notes as beneficiaries of Guarantee, to participate in any distribution of the assets of any subsidiary of AT&T Capital, whether upon liquidation, reorganization, or otherwise, is subject to prior claims of creditors of each such subsidiary, except to the extent that claims of AT&T Capital itself as a creditor of a subsidiary may be allowed. 35 NO ESTABLISHED TRADING MARKET FOR THE NOTES The Exchange Notes are a new issue of securities with no established trading market. Newcourt does not intend to list the Exchange Notes on any national securities exchange or to seek admission thereof to trading in the Nasdaq National Market System. Newcourt has been advised by the initial purchasers that they intend to make a market in the notes. However, they are not obligated to do so and any market-making activities with respect to the notes may be discontinued at any time without notice. In addition, such market making activity in the notes may be limited during the pendency of the exchange offer. Accordingly, no assurance can be given as to the liquidity of or the trading market for the notes. Certain of the initial purchasers of the notes or their affiliates engage from time to time in various general financing and banking transactions with Newcourt and AT&T Capital. The Chase Manhattan Bank, the trustee, is an affiliate of Chase Securities Inc., one of the initial purchasers of the notes. CANADIAN FEDERAL INCOME TAX CONSIDERATIONS Prior to the exchange offer, Blake, Cassels & Graydon, special Canadian tax counsel to Newcourt, will issue an opinion to the effect that the following is a summary of principal Canadian federal income tax considerations generally applicable to a person (a 'United States holder') who acquires Exchange Notes pursuant to the exchange offer in replacement of notes which were acquired by the United States holder pursuant to the initial offering of the notes on December 15th 1998 and who, for purposes of the Income Tax Act (Canada) (the 'Canadian Tax Act') and the Canada-United States Income Tax Convention (the 'Convention') and at all relevant times, is resident in the United States and not resident or deemed to be resident in Canada, deals at arm's length with Newcourt, holds Exchange Notes as capital property, does not use or hold and is not deemed to use or hold Exchange Notes in or in the course of carrying on a business in Canada and, in the case of a United States holder who carries on an insurance business in Canada and elsewhere, establishes that the Exchange Notes are not effectively connected with its Canadian insurance business. This summary is based on the current provisions of the Convention and of the Canadian Tax Act and the regulations thereunder in force as of the date hereof, all specific proposals to amend the Canadian Tax Act and the regulations publicly announced by the Ministry of Finance prior to the date hereof and counsel's understanding as to certain changes to such proposals which will be recommended by the Department of Finance (Canada) (the 'Proposed Amendments') and counsels' understanding of the published administrative and assessing practices of Revenue Canada, Customs, Excise & Taxation. The Proposed Amendments may not be enacted and, if enacted, may not be enacted in the form proposed. This description is not exhaustive of all possible Canadian federal income tax consequences, and except for the Proposed Amendments, does not anticipate any changes in law or administrative practice, whether by legislative, governmental or judicial action, nor does it take into account Canadian provincial or territorial or any non-Canadian tax considerations, which may differ significantly from those discussed herein. This summary is of a general nature only and is not, and should not be interpreted as, legal or tax advice to any particular person, and no representation is made with respect to the Canadian income tax consequences to any person acquiring Exchange Notes. ACCORDINGLY, YOU SHOULD CONSULT YOUR OWN TAX ADVISORS WITH RESPECT TO YOUR PARTICULAR CIRCUMSTANCES. Payment of Interest, Principal or Premium. Under the Canadian Tax Act, the payment by Newcourt of interest, principal or premium on the Exchange Notes to a United States holder will be exempt from Canadian withholding tax. Other Taxes. No other tax on income (including taxable capital gains) will be payable under the Canadian Tax Act by a United States holder solely as a consequence of the holding, redemption or disposition of Exchange Notes or the receipt of interest, principal or premium thereon. 36 UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS Prior to the Exchange Offer, Sidley & Austin, special United States tax counsel to Newcourt, will issue an opinion to the effect that the following information contained under this heading 'United States Federal Income Tax Considerations' is a general discussion of the material United States federal income tax considerations relevant to the exchange of your original notes for Exchange Notes. This discussion is a summary for general information purposes only, and does not consider all aspects of federal income taxation that may be relevant to a particular investor in light of his, her or its personal circumstances. This discussion is based upon the United States federal tax law not in effect, which is subject to change, possibly retroactively. The description does not consider the effect of any applicable foreign, state, local or other tax laws or estate or gift tax considerations. You should consult your own tax advisors regarding the particular United States federal tax consequences to you of exchanging your original notes for Exchange Notes, as well as any tax consequences that may arise under the laws of any foreign, state, local or other taxing jurisdiction. EXCHANGE OF NOTES FOR EXCHANGE NOTES The exchange of your notes for Exchange Notes pursuant to the exchange offer should not constitute a sale or exchange for federal income tax purposes. Accordingly, not only should the exchange offer have no federal income tax consequences to you if you exchange your notes for Exchange Notes (i.e., there should be no change in your tax basis, and your holding period should carry over to the Exchange Notes), but the federal income tax consequences of holding and disposing of the Exchange Notes should also be the same as those that would apply to your notes. ERISA CONSIDERATIONS OVERVIEW The Employee Retirement Income Security Act of 1974, as amended ('ERISA'), imposes certain requirements on employee benefit plans subject to ERISA ('ERISA Plans') and prohibits certain transactions between ERISA Plans and persons who are 'parties in interest' (as defined under ERISA) with respect to assets of such ERISA Plans. Section 4975 of the Code prohibits a similar set of transactions between certain plans or individual retirement accounts ('Code Plans' and together with ERISA Plans, the 'Plans') and persons who are 'disqualified persons' (as defined in the Code) with respect to Code Plans. Certain employee benefit plans, such as governmental plans and church plans (if no election has been made under Section 410(d) of the Code), are not subject to the requirements of ERISA or Section 4975 of the Code, and assets of such plans may be invested in the Exchange Notes, subject to the provisions of other applicable federal and state law. Any such plan which is qualified under Section 401(a) of the Code and exempt from taxation under Section 501(a) of the Code is, however, subject to the prohibited transaction rules set forth in Section 503 of the Code. Investments by ERISA Plans are subject to ERISA's general fiduciary requirements, including the requirement of investment prudence and diversification and the requirement that investments be made in accordance with the documents governing the ERISA Plan. An ERISA Plan fiduciary should consider, among other factors, whether investing in the Exchange Notes is appropriate in view of the overall investment policy and liquidity needs of the ERISA Plan. PROHIBITED TRANSACTIONS Section 406 of ERISA and Section 4975 of the Code prohibit parties in interest and disqualified persons with respect to a ERISA Plans and Code Plans from engaging in certain transactions involving such Plans or 'plan assets' of such Plans, unless a statutory or administrative exemption applies to the transaction. Section 4975 of the Code and Sections 502(i) and 502(l) of ERISA provide for the imposition of certain excise taxes and civil penalties on certain persons that engage or participate in such prohibited transactions. Newcourt, AT&T Capital 37 or the investment banks who were the initial purchasers of the notes in December 1998 or certain affiliates thereof may be considered or may become parties in interest or disqualified persons with respect to a Plan. If this were so, the acquisition of holding of the notes by, on behalf of or with 'plan assets' of such Plan may be considered to give rise to a 'prohibited transaction' within the meaning of ERISA and/or Section 4975 of the Code, unless an administrative exemption described below or some other exemption is available. Depending on the relevant facts and circumstances, certain prohibited transaction exemptions may apply to the purchase or holding of the Exchange Notes -- for example, Prohibited Transaction Class Exemption ('PTCE') 96-23, which exempts certain transactions effected on behalf of a Plan by an 'in-house asset manager'; PTCE 95-60, which exempts certain transactions between insurance company general accounts and parties in interest; PTCE 91-38, which exempts certain transactions between bank collective investment funds and parties in interest; PTCE 90-1, which exempts certain transactions between insurance company pooled separate accounts and parties in interest; PTCE 84-14, which exempts certain transactions effected on behalf of a Plan by a 'qualified professional asset manager'; or PTCE 75-1, which exempts certain transactions between a Plan and certain broker-dealers. There can be no assurance that any of these exemptions will apply with respect to any Plan's investment in the Exchange Notes or, even if an exemption were deemed to apply, that any exemption would apply to all prohibited transactions that may occur in connection with such investment. Due to the complexity of these rules and the penalties imposed, any fiduciary or other Plan investor who proposes to invest assets of a Plan in the Exchange Notes should consult with its counsel with respect to potential consequences under ERISA and Section 4975 of the Code before doing so. PLAN OF DISTRIBUTION Based on interpretations by the staff of the SEC set forth in no-action letters issued to third parties, we believe that Exchange Notes issued pursuant to the exchange offer in exchange for old notes may be offered for resale, resold and otherwise transferred by holders thereof (other than any holder which is (1) an affiliate of Newcourt or AT&T Capital, (2) a broker-dealer who acquired old notes directly from us, or (3) a broker dealer who acquired old notes as a result of market-mailing or other trading activities) without compliance with the registration and prospectus delivery provisions of the Securities Act provided that such Exchange Notes are acquired in the ordinary course of such holders' business, and such holders are not engaged in, and do not intend to engage in, and have no arrangement or understanding with any person to participate in, a distribution of such Exchange Notes; provided, that broker-dealers ('participating broker-dealers') receiving Exchange Notes in the exchange offer will be subject to a prospectus delivery requirement with respect to resales of such Exchange Notes. To date, the SEC has taken the position that participating broker-dealers may fulfill their prospectus delivery requirements with respect to transactions involving an exchange of securities such as the exchange pursuant to the exchange offer (other than a resale of an unsold allotment from the sale of old notes to the initial purchasers of the old notes) with the prospectus contained in the registration statement. Pursuant to the registration rights agreement, Newcourt and AT&T Capital have agreed to permit participating broker-dealers and other persons, if any, subject to similar prospectus delivery requirements to use this prospectus in connection with the resale of such Exchange Notes. Newcourt and AT&T Capital have agreed that, for a period of 180 days after the date the registration statement of which this prospectus is a part is declared effective by the SEC, it will make this prospectus, and any amendment or supplement of this prospectus, available to any broker-dealer that requests such documents in the letter of transmittal. Each holder of old notes who wishes to exchange its old notes for Exchange Notes in the exchange offer will be required to make certain representations to Newcourt and AT&T Capital as set forth in 'The Exchange Offer -- Terms and Conditions of the Letter of Transmittal.' In addition, each holder who is a broker-dealer and who receives Exchange Notes for its own account in exchange for old notes that were acquired by it as a result of market-making activities or other 38 trading activities, will be required to acknowledge that it will deliver a prospectus in connection with any resale by it of such Exchange Notes. We will not receive any proceeds from any sale of Exchange Notes by broker-dealers. Exchange Notes received by broker-dealers for their own account pursuant to the exchange offer may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on the Exchange Notes or a combination of such methods of resale, at market prices prevailing at the time of resale, at prices related to such prevailing market prices or at negotiated prices. Any such resale may be made directly to purchasers or to or through brokers or dealer who may receive compensation in the form of commissions or concessions from any such broker-dealers and/or the purchasers of any such distribution of such Exchange Notes may be deemed to be an 'underwriter' within the meaning of the Securities Act and any profit on any such resale of Exchange Notes and any commissions or concessions received by any such persons may be deemed to be underwriting compensation under the Securities Act. The letter of transmittal states that by acknowledging that it will deliver and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an 'underwriter' within the meaning of the Securities Act. Newcourt has agreed to pay all expenses incidental to the exchange offer other than commissions and concession of any brokers or dealers and Newcourt and AT&T Capital will indemnify holders of the notes (including any broker-dealers) against certain liabilities, including liabilities under the Securities Act, as set forth in the registration rights agreement. LEGAL MATTERS The validity of the Exchange Notes and Guarantee will be passed upon for Newcourt by Wilentz, Goldman & Spitzer and John P. Stevenson, Counsel and Secretary, and for AT&T Capital by Wilentz, Goldman & Spitzer and one or more of its Assistant General Counsels. EXPERTS The consolidated financial statements for Newcourt incorporated by reference in this prospectus, to the extent and for the periods indicated in their report, have been audited by Ernst & Young LLP, Chartered Accountants and are incorporated by reference herein in reliance on their report given on the authority of that firm as experts in accounting and auditing. 39 [THIS PAGE INTENTIONALLY LEFT BLANK] [NEWCOURT LOGO] Offer To Exchange All $300,000,000 7.125% Notes, Series A due December 17, 2003 For $300,000,000 7.125% Exchange Notes, Series A due December 17, 2003 Guaranteed as to Payment of Principal, Premium, if any, and Interest by [AT&T LOGO] PROSPECTUS August 12, 1999 The Chase Manhattan Bank as Exchange Agent PART II TO FORM F-4 INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION* Securities and Exchange Commission Filing fee. 83,400 Rating Agency Fees.......................................... 10,000 Fees and Expenses of Trustee................................ 5,000 Printing and Distributing Registration Statement, Prospectus, Indenture and Miscellaneous Material.......... 130,000 Accountants' Fees........................................... 20,000 Legal Fees and Expenses..................................... 100,000 Blue Sky Fees and Expenses.................................. 40,000 Exchange Agent Fees and Expenses............................ 10,000 Miscellaneous Expenses...................................... 27,000 -------- Total.................................................. $425,400 -------- --------
- ------------ * Estimated, except for filing fee. ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS NEWCOURT CREDIT GROUP INC. ('NEWCOURT') Under the Business Corporations Act (Ontario) (the 'OBCA'), Newcourt may indemnify a present or former director or officer of Newcourt or person who acts or acted at Newcourt's request as a director or officer of another body corporated of which Newcourt is or was a shareholder or creditor, and his or her heirs and legal representatives: (a) against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by him or her in respect of any civil, criminal or administrative action or proceeding to which he or she is made a party by reason of being or having been a director or officer of Newcourt; (b) with court approval, against all costs, charges and expenses reasonably incurred by him or her in connection with an action brought by or on behalf of Newcourt or body corporate to procure a judgment in its favour, to which he or she is made a party by reason of being or having been a director or officer of Newcourt or body corporate; and (c) in respect of all costs, charges and expenses reasonably incurred by him or her in connection with the defense of any civil, criminal or administrative action or proceeding to which he or she is made a party by reason of having been a director or officer of Newcourt or body corporate, if her or she was substantially successful on the merits or his or her defense of the action or proceeding. provided, in all cases, such director or officer (i) acted honestly and in good faith with a view to the best interests of Newcourt, and (ii) in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, such director or officer had reasonable grounds for believing that his or her conduct was lawful. Subject to the limitations contained in the OBCA, the By-laws of Newcourt provide that every director or officer of Newcourt, every former director or officer of Newcourt or a person who acts or acted at Newcourt's request as a director or officer of a body corporate of which Newcourt is or was a shareholder or creditor, and his heirs and legal representatives shall, from time to time, be indemnified and saved harmless by Newcourt from and against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by him in respect of any civil, criminal or administrative action or proceeding to which he is made a party by reason of being or having been a director or officer of Newcourt or body corporate if: II-1 (1) he acted honestly and in good faith with a view to the best interests of Newcourt; and (2) in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, he had reasonable grounds for believing that his conduct was lawful. Newcourt maintains directors' and officers' liability insurance with an aggregate annual limit of liability of $40,000,000. Under this insurance coverage, Newcourt is reimbursed for payments made to directors or officers of Newcourt, as required or permitted by law or under provisions of the By-laws of Newcourt, as indemnity for loss, including legal costs, arising from acts, errors or omissions done or committed by officers or directors of Newcourt in the course of their duties. Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended, may be permitted to directors, officers or persons controlling AT&T Capital or Newcourt pursuant to the foregoing provisions. AT&T Capital and Newcourt have been informed that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933, as amended, and is therefore unenforceable. AT&T CAPITAL CORPORATION ('AT&T CAPITAL') Section 145 of the General Corporation Law of Delaware and AT&T Capital's Restated Certificate of Incorporation and By-Laws provide for the indemnification of directors and officers under certain circumstances, and on a case by case basis, against expenses reasonably incurred in connection with a civil or criminal action to which he or she was a party, or threatened to be made a party, by reason of being a director or officer. AT&T Capital's Resated Certificate of Incorporation and By-Laws provide for indemnity of directors and officers to the fullest extent permitted by law. The directors and officers of AT&T Capital are covered by an insurance policy indemnifying them against certain liabilities, including certain liabilities arising under the Securities Act of 1933, as amended, which might be incurred by them in such capacities and against which they cannot be indemnified by AT&T Capital. ITEM 16. EXHIBITS
EXHIBIT NUMBER - ------ 4A -- Form of Indenture dated as of December 15, 1998 (the 'Indenture'), between Newcourt and The Chase Manhattan Bank, as trustee 4B -- Form of Series A Global Fixed Rate Note 4C -- Form of Guarantee dated as of December 15, 1998 by AT&T Capital relating to the notes 4D -- Form of Registration Rights Agreement dated December 15, 1998 among Newcourt, AT&T Capital and Lehman Brothers Inc. as Representative of the initial purchasers 4E -- Form of Exchange Note 5A -- Opinion of John P. Stevenson, Corporate Secretary and Counsel of Newcourt, as to the legality under Canadian and Ontario law of the Securities being registered 5B -- Opinion of Wilentz, Goldman & Spitzer, as to the legality under New York law of the Securities and the Guarantees being registered 5C -- Opinion of Eric S. Mandelbaum, assistant general counsel to AT&T Capital, as to the legality under Federal and Delaware Corporate law of the Guarantees being registered 8A -- Opinion of Sidley and Austin as to certain tax matters 8B -- Opinion of Blake, Cassels & Graydon as to certain Canadian tax matters 10 -- Form of Purchase Agreement dated December 8, 1998 among Lehman Brothers Inc. as Representative of the initial purchasers, Newcourt and AT&T Capital 12A -- Computation of Ratios of Earnings to Fixed Charges for Newcourt 12B -- Computation of Ratios of Earnings to Fixed Charges for AT&T Capital 23A -- Consent of Ernst & Young LLP 23B -- Consent of John P. Stevenson, Corporate Secretary and Counsel of Newcourt (included in Exhibit 5A) 23C -- Consent of Wilentz, Goldman & Spitzer (included in Exhibit 5B)
II-2 23D -- Consent of Eric S. Mandelbaum, assistant general counsel to AT&T Capital (included in Exhibit 5C) 23E -- Consent of Sidley and Austin (included in Exhibit 8A) 23F -- Consent of Blake, Cassels & Graydon (included in Exhibit 8B) *24 -- Powers of Attorney executed by the directors and officers who signed the registration statement (incorporated into the signature pages on pages II-5, II-6 and II-7 of the initial filing of this registration statement) 25 -- Statement of Eligibility of the trustee on Form T-1 99A -- Letter of Transmittal 99B -- Notice of Guaranteed Delivery 99C -- Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees 99D -- Letter from Registered Holders to Clients
- ------------ * Previously filed with the Commission. ITEM 17. UNDERTAKINGS The undersigned Registrants hereby undertake: (1) to file, during any period in which offers or sales are being made of the securities registered hereby, a post-effective amendment to this registration statement: (i) to include any prospectus required by section 10(a)(3) of the Securities Act of 1933, as amended; (ii) to reflect in the prospectus any facts or events arising after the effective date of this registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in this registration statement; Provided, however, that the undertakings set forth in paragraphs (i) and (ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Securities and Exchange Commission by Newcourt pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, that are incorporated by reference in this registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, as amended, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (4) That, for purposes of determining any liability under the Securities Act of 1933, as amended, each filing or Newcourt's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended, that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (5) (a) to respond to requests for information that is incorporated by reference into the prospectus pursuant to Items 4, 10(b), 11 or 13 of Form F-4, including information contained in documents filed subsequent to the effective date through the date of responding to the request, within one business day of receipt of such request, and to send the incorporated documents by first class mail or equally prompt means; and (6) to arrange or provide for a facility in the United States for the purpose of responding to such requests. II-3 Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended, may be permitted to directors, officers and controlling persons of the Registrants pursuant to the applicable provisions referred to in Item 15 above or otherwise, the Registrants have been advised that in the opinion of the Securities and Exchange Commission such indemnification by them is against public policy as expressed in the Securities Act of 1933, as amended and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrants of expenses incurred or paid by a director, officer or controlling person of the Registrants in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, each of the Registrants will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933, as amended, and will be governed by the final adjudication of such issue. For purposes of determining any liability under the Securities Act of 1933, as amended, the information omitted from the form of prospectus filed as part of a registration statement in reliance upon Rule 430A and contained in the form of prospectus filed by the Registrants pursuant to Rule 424(b)(1) or (4) of 497(b) under the Securities Act of 1933, as amended, shall be deemed to be part of the registration statement as of the time it was declared effective. For the purpose of determining any liability under the Securities Act of 1933, as amended, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. II-4 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, AT&T Captial Corporation certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-4 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Township of Parsippany, State of New Jersey, on the 12th day of August 1999. AT&T CAPITAL CORPORATION By /s/ SCOTT J. MOORE ................................ SCOTT J. MOORE EXECUTIVE VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the date indicated.
SIGNATURE CAPACITY DATE --------- -------- ---- * Principal Executive .................................... Officer -- Chief Executive (STEVEN K. HUDSON) Officer and Director * Director .................................... (DANIEL A. JAUERNIG) Vice President and Controller By: /s/ SCOTT J. MOORE .................................... ....................... (THOMAS G. ADAMS) SCOTT J. MOORE* * Director .................................... August 12, 1999 (DAVID F. BANKS) * Group President and Director .................................... (BRADLEY D. NULLMEYER)
- ------------ * Scott J. Moore was appointed the lawful attorney-in-fact with power and authority to execute this registration statement on behalf of the officers and directors named above pursuant to the power of attorney incorporated into the signature pages at the time of the initial filing of this registration statement. II-5 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, Newcourt Credit Group Inc. certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-4 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Toronto, Province of Ontario, Country of Canada, on the 12th day of August 1999. NEWCOURT CREDIT GROUP INC. By /s/ SCOTT J. MOORE ................................ NAME: SCOTT J. MOORE TITLE: CHIEF FINANCIAL OFFICER Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed below by the following persons in the capacities and on the date indicated.
SIGNATURE CAPACITY DATE --------- -------- ---- /s/ BORDEN D. ROSIAK Principal Financial Officer and August 12, 1999 .................................... Acting Principal Accounting (BORDEN D. ROSIAK) Officer -- Chief Financial Officer * Principal Executive Officer -- ..................................... Chief Executive Officer and (STEVEN K. HUDSON) Director * Chairman of the Board and .................................... Director (DAVID F. BANKS) * Director .................................... (THOMAS S. AXWORTHY) * Director .................................... (GERALD E. BEASLEY) * Director .................................... (WILLIAM A. FARLINGER) By: /s/ DANIEL A. JAUERNIG ........................ * Director DANIEL A. JAUERNIG* .................................... (GUY HANDS) August 12, 1999 * Director .................................... (ROBERT F. KILIMNIK) * Director .................................... (DAVID A. MACINTOSH) * Director .................................... (DAVID D. MCKERROLL)
II-6 * Director ..................................... (RONALD A. MCKINLAY) * Director .................................... (PAUL G. MORTON) * Director .................................... (BRADLEY S. NULLMEYER) * Director .................................... (BRUCE I. ROBERTSON) * Director .................................... (DAVID J. SHARPLESS) By: /s/ DANIEL A. JAUERNIG ...................... * Director DANIEL A. JAUERNIG* .................................... (TAKUMI SHIBATA) August 12, 1999 * Director .................................... (DR. STEVEN C. SMALL) * Director .................................... (RICHARD E. VENN) * Director .................................... (WILLIAM D. WALSH) AT&T CAPITAL CORPORATION Authorized Representative in the August 12, 1999 United States By: /s/ SCOTT J. MOORE .................................... (SCOTT J. MOORE)
- ------------ * Daniel A. Jauernig was appointed the lawful attorney-in-fact with power and authority to execute this registration statement on behalf of the officers and directors named above pursuant to the power of attorney incorporated into the signature pages at the time of the initial filing of this registration statement. II-7 EXHIBIT INDEX
EXHIBIT NUMBER - ------ 4A -- Form of Indenture dated as of December 15, 1998 (the 'Indenture'), between Newcourt and The Chase Manhattan Bank, as trustee 4B -- Form of Series A Global Fixed Rate Note 4C -- Form of Guarantee dated as of December 15, 1998 relating to the notes 4D -- Form of Registration Rights Agreement dated December 15, 1998 among Newcourt, AT&T Capital and Lehman Brothers Inc. as representative of the initial purchasers 4E -- Form of Exchange Note 5A -- Opinion of John P. Stevenson, Corporate Secretary and Counsel of Newcourt, as to the legality under Canadian and Ontario law of the Securities being registered 5B -- Opinion of Wilentz, Goldman & Spitzer, as to the legality under New York law of the Securities and the Guarantees being registered 5C -- Opinion of Eric S. Mandelbaum, assistant general counsel to AT&T Capital, as to the legality under Federal and Delaware Corporate law of the Guarantees being registered. 8A -- Opinion of Sidley and Austin as to certain tax matters 8B -- Opinion of Blake, Cassels & Graydon as to certain Canadian tax matters 10 -- Form of Purchase Agreement dated December 8, 1998 among Lehman Brothers Inc. as representative of the initial purchasers, Newcourt and AT&T Capital 12A -- Computation of Ratios of Earnings to Fixed Charges for Newcourt 12B -- Computation of Ratios of Earnings to Fixed Charges for AT&T Capital 23A -- Consent of Ernst & Young LLP 23B -- Consent of John P. Stevenson, Corporate Secretary and Counsel of Newcourt (included in Exhibit 5A) 23C -- Consent of Wilentz, Goldman & Spitzer (included in Exhibit 5B) 23D -- Consent of Eric S. Mandelbaum, assistant general counsel to AT&T Capital (included in Exhibit 5C) 23E -- Consent of Sidley and Austin (included in Exhibit 8A) 23F -- Consent of Blake, Cassels & Graydon (included in Exhibit 8B) *24 -- Powers of Attorney executed by the directors and officers who signed the registration statement (incorporated into the signature pages on pages II-5, II-6 and II-7 of the initial filing of this registration statement) 25 -- Statement of Eligibility of the Trustee on Form T-1 99A -- Letter of Transmittal 99B -- Notice of Guaranteed Delivery 99C -- Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees 99D -- Letter from Registered Holders to Clients
- ------------ * Previously filed with the Commission. STATEMENT OF DIFFERENCES ------------------------ The section symbol shall be expressed as................................. 'SS' EX-4 2 EXHIBIT 4A NEWCOURT CREDIT GROUP INC. AND THE CHASE MANHATTAN BANK, AS TRUSTEE -------------------- INDENTURE DATED AS OF DECEMBER 15, 1998 -------------------- TABLE OF CONTENTS*
CROSS-REFERENCE TABLE PAGE ---- PARTIES...........................................................................................................1 RECITALS OF THE COMPANY:..........................................................................................1 Purpose of Indenture.....................................................................................1 Compliance with Legal Requirements.......................................................................1 Purpose of and Consideration for Indenture...............................................................1 CROSS-REFERENCE TABLE RECITALS OF THE COMPANY ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE SECTION 1.01. Definitions............................................................................1 SECTION 1.02. Other Definitions......................................................................9 SECTION 1.03. Incorporation by Reference of Trust Indenture Act......................................9 SECTION 1.04. Rules of Construction..................................................................9 ARTICLE 2 THE SECURITIES. SECTION 2.01. Issuable in Series....................................................................10 SECTION 2.02. Establishment of Terms and Form of Series of Securities...............................10 SECTION 2.03. Execution, Authentication and Delivery................................................13 SECTION 2.04. Registrar and Paying Agent............................................................15 SECTION 2.05. Payment on Securities.................................................................16 SECTION 2.06. Paying Agent to Hold Money in Trust...................................................17 SECTION 2.07. Securityholder Lists; Ownership of Securities.........................................17 SECTION 2.08. Transfer and Exchange.................................................................18 SECTION 2.09. Replacement Securities................................................................19 SECTION 2.10. Outstanding Securities................................................................19 SECTION 2.11. Temporary Securities; Global Securities...............................................20 SECTION 2.12. Cancellation..........................................................................22 SECTION 2.13. Defaulted Interest....................................................................22 ARTICLE 3 REDEMPTION. SECTION 3.01. Notice to Trustee.....................................................................23 SECTION 3.02. Selection of Securities to be Redeemed................................................23 SECTION 3.03. Notice of Redemption..................................................................23
- -------- * The Table of Contents is not part of the Indenture. i SECTION 3.04. Effect of Notice of Redemption........................................................24 SECTION 3.05. Deposit of Redemption Price...........................................................25 SECTION 3.06. Mandatory and Optional Sinking Funds..................................................25 SECTION 3.07. Prepayment Upon Certain Taxation Events...............................................27 ARTICLE 4 COVENANTS SECTION 4.01. Payment of Securities.................................................................27 SECTION 4.02. Reports by the Company................................................................28 SECTION 4.03. Limitations on Incurrence of Secured Debt.............................................29 SECTION 4.04. Statement as to Compliance; Notice of Certain Events of Default.......................32 SECTION 4.05. Payment of Additional Amounts.........................................................32 ARTICLE 5 CONSOLIDATION, MERGER, SALE OR CONVEYANCE. SECTION 5.01. Consolidation or Merger, etc., on Certain Terms.......................................33 SECTION 5.02. Successor Corporation Substituted.....................................................34 SECTION 5.03. Opinion of Counsel to Trustee.........................................................34 ARTICLE 6 REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT. SECTION 6.01. Events of Default; Acceleration of Maturity; Waiver of Default........................34 SECTION 6.02. Collection of Indebtedness by Trustee; Trustee May Prove Debt.........................37 SECTION 6.03. Application of Proceeds...............................................................39 SECTION 6.04. Limitation on Suits by Securityholders................................................39 SECTION 6.05. Powers and Remedies Cumulative; Delay or Omission, Not Waiver of Default............................................................................40 SECTION 6.06. Control by Securityholders; Waiver of Defaults........................................41 SECTION 6.07. Right of Court to Require Filing of Undertaking to Pay Costs.................................................................................41 ARTICLE 7 TRUSTEE SECTION 7.01. Duties of Trustee.....................................................................42 SECTION 7.02. Rights of Trustee.....................................................................43 SECTION 7.03. Individual Rights of Trustee..........................................................44 SECTION 7.04. Trustee Disclaimer....................................................................44 SECTION 7.05. Notice of Default.....................................................................44 SECTION 7.06. Reports by Trustee to Holders.........................................................44 SECTION 7.07. Compensation and Indemnity............................................................45 SECTION 7.08. Replacement of Trustee................................................................45 SECTION 7.09. Successor Trustee, Agents by Merger, etc..............................................47 SECTION 7.10. Eligibility; Disqualification.........................................................47 SECTION 7.11. Preferential Collection of Claims Against Company.....................................47
ii SECTION 7.12. Authenticating Agent..................................................................48 ARTICLE 8 SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE; UNCLAIMED MONIES. SECTION 8.01. Satisfaction and Discharge of Indenture...............................................50 SECTION 8.02. Defeasance upon Deposit of Moneys or U.S. Government Obligations...........................................................................51 SECTION 8.03. Application of Moneys Deposited.......................................................53 SECTION 8.04. Repayment of Moneys Held..............................................................53 SECTION 8.05. Return of Moneys Unclaimed for Two Years; Return of Additional Moneys and U.S. Government Obligations................................................53 SECTION 8.06. Indemnity for Government Obligations..................................................54 ARTICLE 9 AMENDMENTS AND WAIVERS. SECTION 9.01. Without Consent of Holders............................................................54 SECTION 9.02. With Consent of Holders...............................................................55 SECTION 9.03. Compliance with Trust Indenture Act...................................................56 SECTION 9.04. Revocation and Effect of Consents.....................................................56 SECTION 9.05. Notation on or Exchange of Securities.................................................56 SECTION 9.06. Trustee Protected.....................................................................56 ARTICLE 10 MISCELLANEOUS. SECTION 10.01. Trust Indenture Act Controls..........................................................57 SECTION 10.02. Notices...............................................................................57 SECTION 10.03. Communication by Holders with Other Holders...........................................58 SECTION 10.04. Certificate and Opinion as to Conditions Precedent....................................58 SECTION 10.05. Statements Required in Certificate or Opinion.........................................59 SECTION 10.06. Legal Holidays........................................................................59 SECTION 10.07. Governing Law.........................................................................59 SECTION 10.08. No Adverse Interpretation of Other Agreements.........................................59 SECTION 10.09. No Recourse Against Others............................................................60 SECTION 10.10. When Treasury Securities Disregarded..................................................60 SECTION 10.11. Rules by Trustee, Paying Agent, Registrar, Record Dates...............................60 SECTION 10.12. Execution in Counterparts.............................................................60 SECTION 10.13. Securities in a Foreign Currency......................................................61 SECTION 10.14. Judgment Currency.....................................................................61
iii CROSS-REFERENCE TABLE**
Trust Indenture Act of 1939 Indenture Section Section - ------- ------- 310(a).........................................................................................................7.10 310(b).........................................................................................................7.10 310(c)..........................................................................................................N/A 311(a).........................................................................................................7.11 311(b).........................................................................................................7.11 311(c)..........................................................................................................N/A 312(a).........................................................................................................2.07 312(b)........................................................................................................10.03 312(c)........................................................................................................10.03 313(a).........................................................................................................7.06 313(b).........................................................................................................7.06 313(c).........................................................................................................4.02 314(a)...................................................................................................4.02, 4.04 314(b)..........................................................................................................N/A 314(c)........................................................................................................10.04 314(d)..........................................................................................................N/A 314(e)........................................................................................................10.05 314(f)..........................................................................................................N/A 315(a).........................................................................................................7.01 315(b).........................................................................................................7.05 315(c).........................................................................................................7.01 315(d).........................................................................................................7.01 315(e).........................................................................................................6.07 316(a)...................................................................................................6.06, 9.02 316(b).........................................................................................................9.02 316(c)........................................................................................................10.11 317(a).........................................................................................................6.02 317(b).........................................................................................................2.06 318(a)........................................................................................................10.01
- -------- ** The Cross Reference Table is not part of the Indenture. iv THIS INDENTURE, dated as of December 15, 1998, is entered into by and between Newcourt Credit Group Inc., a corporation duly organized and validly existing under the laws of the Province of Ontario (together with its successors and assigns, the "Company"), and The Chase Manhattan Bank, a banking corporation duly organized and validly existing under the laws of the State of New York, as trustee (together with its successors and assigns, the "Trustee"). RECITALS OF THE COMPANY The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured debentures, notes or other evidences of indebtedness ("Securities") as herein provided. In connection the execution and delivery of this Indenture, the Guarantor has duly authorized the execution and delivery of the Guarantee relating to the Securities. All things necessary to make this Indenture a valid agreement of the Company in accordance with its terms, have been done. For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed as follows for the equal and ratable benefit of the Holders of the Securities: ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE. SECTION 1.01. Definitions. "Accounts Receivable" mean (i) any accounts receivable (whether or not earned by performance), chattel paper, instruments, documents, general intangibles, trade acceptances, any other rights to receive installment, rental or other payments for, or relating to amounts due or to become due on account of equipment or goods sold or leased or to be sold or leased or services rendered or to be rendered or funds advanced or loaned or to be advanced or loaned and other rights to payment of any kind, (ii) any proceeds of any of the foregoing and (iii) any interest in any property or asset of any kind (whether of the obligor under such Accounts Receivable or any other Person) securing the payment of any item listed in clause (i) hereof. "Acquired Financing Assets" means assets (including, but not limited to, securities and receivables) of any Person the acquisition of which was financed in accordance with the Company's credit policies and procedures manual approved from time to time by the Board of Directors. "Affiliate" means any Person directly or indirectly controlling or controlled by, or under direct or indirect common control with, the Company. 1 "Agent" means any Paying Agent or Registrar. "Authenticated" means (a) with respect to a Certificated Security, one which has been duly authenticated by manual signature of an authorized officer of the Trustee or an authenticating agent; and (b) with respect to an Uncertificated Security, one in respect of which the Trustee or authenticating agent has completed all Internal Procedures. "Authenticate," "Authenticating," and "Authentication" have the appropriate correlative meanings. "Authorized Newspaper" means a newspaper of general circulation, in the official language of the country of publication or in the English language, customarily published on each business day. Whenever successive weekly publications in an Authorized Newspaper are required hereunder they may be made (unless otherwise expressly provided herein) on the same or different days of the week and in the same or different Authorized Newspapers. "Board of Directors" means the Board of Directors of the Company or any duly authorized committee thereof. "Board Resolution" means a copy of a resolution of the Board of Directors, certified by the Secretary or an Assistant Secretary of the Company to have been adopted by the Board of Directors and to be in full force and effect on the date of the certificate, and delivered to the Trustee. "Capitalized Lease" means any lease the obligation for Rentals with respect to which is required to be capitalized on a consolidated balance sheet of the lessee and its subsidiaries in accordance with GAAP. "Capitalized Rentals" of any Person shall mean as of the date of any determination thereof the amount at which the aggregate Rentals due and to become due under all Capitalized Leases under which such Person is a lessee would be reflected as a liability on a consolidated balance sheet of such Person. "Certificated Security" or "Certificated Securities" means a Registered Security, Registered Securities, Unregistered Security or Unregistered Securities of any series evidenced by a writing or writings substantially in the form established as provided in Section 2.02(a) hereof. "Company" means Newcourt Credit Group Inc., a corporation organized under the laws of the Province of Ontario, until a successor replaces it subject to the provisions of Article 5 and thereafter means the successor. "Company Order" means an order signed by two Officers or by any Officer and an Assistant Treasurer or an Assistant Secretary of the Company, and delivered to the Trustee. "Consolidated Net Tangible Assets" means at the date of any determination thereof, the total assets appearing on the consolidated balance sheet of the Company and its 2 Restricted Subsidiaries as at the end of the most recent fiscal quarter of the Company for which such balance sheet is available, prepared in accordance with GAAP, less (a) all current liabilities (obligations whose liquidity is reasonably expected to occur within twelve months), (b) investments in and advances to Subsidiaries of the Company other than Restricted Subsidiaries or other entities accounted for on the equity method of accounting and (c) Intangible Assets. "Debt" of any Person shall mean and include all obligations of such Person for money borrowed or which have been incurred in connection with the acquisition of assets which in accordance with GAAP shall be classified upon a balance sheet of such Person as liabilities of such Person, and in any event shall include, without duplication, all (i) Capitalized Rentals and (ii) Guaranties of obligations of others of the character referred to in this definition. "Default" means any event which is, or after notice or passage of time or both would be, an Event of Default. "Depositary" means, (i) with respect to Global Securities of any Series which are offered for sale solely outside of the United States, a common depositary for Morgan Guaranty Trust Company of New York, Brussels office, operator of the Euroclear System, and Centrale de Livraison de Valeurs Mobilieres, S.A., and (ii) with respect to Global Securities of any Series which are offered for sale in the United States, a clearing agency registered under the Securities Exchange Act of 1934, or any successor thereto, which shall in either case be designated by the Company pursuant to either Section 2.02 or 2.11. "GAAP" means generally accepted accounting principles in Canada or the United States, as applicable, applied on a consistent basis. "Global Security" means, with respect to any Series of Securities issued hereunder, a Security, which may be a Registered or an Unregistered Security, executed by the Company and authenticated and delivered by the Trustee to the Depositary or pursuant to the Depositary's instruction, all in accordance with this Indenture, including Section 2.11, and pursuant to a Company Order, and which shall represent, and shall be denominated in an amount equal to the aggregate principal amount of, all of the outstanding Securities of such Series or a portion thereof, in either case having the same terms, including, without limitation, the same issue date, date or dates on which principal is due, interest rate or method of determining interest, and, in the case of Original Issue Discount Securities, which have the same issue price. "Global Security" shall include any temporary global Security and any permanent global Security. "Guarantee" means the agreement of the Guarantor in the form attached hereto as Exhibit A. "Guaranties" by any Person shall mean all obligations (other than endorsements in the ordinary course of business of negotiable instruments for deposit or collection) of such Person guaranteeing, or in effect guaranteeing, any Indebtedness, dividend or other obligation of any other Person (the "primary obligor") in any manner, whether directly or indirectly, including, without limitation, all obligations incurred through an agreement, contingent or otherwise, by 3 such Person: (i) to purchase such Indebtedness or obligation or any property or assets constituting security therefor, (ii) to advance or supply funds (x) for the purchase or payment of such Indebtedness or obligation, (y) to maintain working capital or other balance sheet condition or otherwise to advance or make available funds for the purchase or payment of such Indebtedness or obligation, (iii) to lease property or to purchase Shares or other property or services primarily for the purpose of assuring the owner of such Indebtedness or obligation of the ability of the primary obligor to make payment of the Indebtedness or obligation, or (iv) otherwise to assure the owner of the Indebtedness or obligation of the primary obligor against loss in respect thereof. For the purposes of all computations made under this Indenture, a Guaranty in respect of any Debt shall be deemed, without duplication, to be Indebtedness equal to the principal amount of such Debt which has been guaranteed, and a Guaranty in respect of any other obligation or liability or any dividend shall be deemed to be Indebtedness equal to the maximum aggregate amount of such obligation, liability or dividend. "Guarantor" means AT&T Capital Corporation, a Delaware corporation, or any permitted successor or assignee. "Holder" or "Securityholder" means a bearer of an Unregistered Security or of a coupon appertaining thereto or a Person in whose name a Registered Security is registered on the Registrar's books. "Indebtedness" of any Person shall mean and include all obligations of such Person which in accordance with GAAP shall be classified upon a balance sheet of such Person as liabilities of such Person, and in any event shall include all (i) obligations of such Person for borrowed money or which has been incurred in connection with the acquisition of property or assets, (ii) obligations secured by any Lien upon property or assets owned by such Person, even though such Person has not assumed or become liable for the payment of such obligations, (iii) obligations created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person, notwithstanding the fact that the rights and remedies of the seller, lender or lessor under such agreement in the event of default are limited to repossession or sale of property, (iv) the face amount of all letters of credit issued for the account of such Person and all drafts drawn thereunder, (v) Capitalized Rentals and (vi) Guaranties of obligations of others of the character referred to in this definition. "Indenture" means this Indenture as amended or supplemented from time to time and shall include the forms and terms of particular Series of Securities established as contemplated hereunder. "Intangible Assets" means the value (net of any applicable reserves), as shown on or reflected in the Company's consolidated balance sheet, of: (i) all trade names, trademarks, licenses, patents, copyrights and goodwill; (ii) organization and development costs; (iii) deferred charges (other than prepaid items such as insurance, taxes, interest, commissions, rents and similar items and tangible assets being amortized); and (iv) unamortized debt discount and expense, less unamortized premium. 4 "Internal Procedures" means in respect of the making of any one or more changes in or deletions of any one or more entries in the books or records kept for the purpose of indicating the registered Holder of a Security at any time (including without limitation, original issuance or registration of any transfer of ownership) the minimum number of the Trustee's or authenticating agent's internal procedures customary at such time for the action taken to be complete under the operating procedures followed at the time by the Trustee or authenticating agent, as the case may be, it being understood that neither preparation nor issuance, nor delivery to nor receipt by holders of Statements of Account shall constitute part of such procedures for any purpose of this definition. "Investments" means all investments, in cash or by delivery of property made, directly or indirectly in any Person, whether by acquisition of securities, indebtedness or other obligations or by loan, advance, capital contribution or otherwise; provided, however, that "Investments" shall not mean or include routine investments in property to be used or consumed in the ordinary course of business. "Lien" means any interest in property securing an obligation owed to, or a claim by, a Person other than the owner of the property, whether such interest is based on the common law, statute or contract, and including but not limited to the security interest lien arising from a mortgage, encumbrance, pledge, conditional sale or trust receipt or a lease, consignment or bailment for security purposes. The term "Lien" shall include reservations, exceptions, encroachments, easements, rights-of-way, covenants, conditions, restrictions, leases and other title exceptions and encumbrances (including, with respect to shares, shareholder agreements, voting trust agreements, buy-back agreements and all similar arrangements) affecting property. For purposes of this Indenture, the Company or any Restricted Subsidiary shall be deemed to be the owner of any property which it has acquired or holds subject to a conditional sale agreement, Capitalized Lease or other arrangement pursuant to which title to the property has been retained by or vested in some other Person for security purposes and such retention or vesting shall constitute a Lien. "Non-Recourse Debt" of the Company or any Restricted Subsidiary means any indebtedness for borrowed money of the Company or such Restricted Subsidiary, as the case may be, which is secured by any Lien (as such term is used in Section 4.03) on, or payable solely from the income and proceeds of, any property (including, without limiting the generality of such term, any intangible assets), shares of stock, other equity interests or debt of the Company or such Restricted Subsidiary, as the case may be, and which is not a general obligation of the Company or Restricted Subsidiary, as the case may be. "Officer" means the Chairman of the Board of Directors, any Vice-Chairman of the Board of Directors, the Chief Executive Officer, the President, any Vice-President (whether or not designated by a number or numbers, or a word or words added before or after the title Vice-President), the Chief Financial Officer, the Treasurer, the Secretary or the Controller of the Company. 5 "Officers' Certificate" means a certificate signed by two Officers or by any Officer and an Assistant Treasurer or an Assistant Secretary of the Company. "Opinion of Counsel" means a written opinion of legal counsel who is reasonably acceptable to the Trustee. The counsel may be an employee of or counsel to the Company or the Trustee. "Original Issue Discount Security" means any Security which provides for an amount less than the stated principal amount thereof to be due and payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.01. "Person" means an individual, partnership, corporation, trust, joint venture, joint stock company, association, limited liability company, unincorporated organization or other entity. "Principal" whenever used with reference to the Securities or any portion thereof, shall be deemed to include "any premium, if any." "Purchase Money Obligations" means Liens incurred to secure the payment of the purchase price incurred in connection with the acquisition of real or personal assets (other than Acquired Financing Assets) useful and intended to be used in carrying on the business of the Company or a Restricted Subsidiary, including Liens existing on such assets at the time of acquisition by the Company or a Restricted Subsidiary of any business entity then owning such assets, whether or not such existing Liens were given to secure the payment of the purchase price of such assets to which they attach so long as they were not incurred, extended or renewed in contemplation of such acquisition, provided that (A) the Lien attach solely to such assets acquired or purchased, (B) at the time of acquisition of such assets, the aggregate amount remaining unpaid on all Debt secured by Liens on such assets whether or not assumed by the Company or a Restricted Subsidiary shall not exceed an amount equal to the lesser of the total purchase price or fair market value at the time of acquisition of such assets, and (C) all such Debt shall have been incurred within the applicable limitations of this Indenture. "Rentals" shall mean and include as of the date of any determination thereof all fixed payments (including as such all payments which the lessee is obligated to make to the lessor on termination of the lease or surrender of the property) payable by the Company or a Restricted Subsidiary, as lessee or sublessee under a lease of real or personal property, but shall be exclusive of any amounts required to be paid by the Company or a Restricted Subsidiary (whether or not designated as rents or additional rents) on account of maintenance, repairs, insurance, taxes and similar charges. Fixed rents under any so-called "percentage leases" shall be computed solely on the basis of the minimum rents, if any, required to be paid by the lessee regardless of sales volume or gross revenues. "Registered Security" means any Security issued hereunder and registered as to principal and interest by the Registrar. 6 "Responsible Officer" when used with respect to the Trustee, shall mean the chairman or any vice-chairman of the board of directors, the executive committee of the board of directors or trust committee, the president, any vice-president, the cashier, the secretary, the treasurer, any trust officer, any second or assistant vice-president or any other officer or assistant officer of the Trustee customarily performing functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of his knowledge of and familiarity with a particular subject. "Restricted Subsidiary" means each Subsidiary of the Company organized under the laws of any State of the United States or the District of Columbia, no substantial portion of the business of which is carried on outside of the United States; provided that each Drop-Down Subsidiary (as defined in Section 5.01) shall be a Restricted Subsidiary. "SEC" means the Securities and Exchange Commission. "Secured Subordinated Debt" means all Subordinated Debt of any Person which is secured by any Lien. "Series" or "Series of Securities" means a series of Securities. "Securities" means the debentures, notes or other obligations of the Company that have been Authenticated under this Indenture. "Statement of Account" means a statement containing the information required by law, and such other information as the Company or the Trustee or the authenticating agent may provide, to be sent to Holders of Uncertificated Securities at the intervals and other times required by law or otherwise determined to be appropriate by the Company or the Trustee or the authenticating agent. "Subordinated Debt" means and includes any Debt of any Person which is subordinated in right of payment to the Debt (other than Unsecured Subordinated Debt) of such Person; provided, however, that so long as no default has occurred and is continuing under any such Debt of such Person, such Person may make payments in connection with such Subordinated Debt as such payments become due. "Subsidiary" means with respect to any Person, any corporation more than 50% of the outstanding voting stock of which is owned, directly or indirectly, by such Person and/or by one or more other Subsidiaries of such Person. For purposes of such definition, "voting stock" means stock ordinarily having voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency. "TIA" means the Trust Indenture Act of 1939. 7 "Trust Indenture Act of 1939" means (except as herein otherwise expressly provided) the Trust Indenture Act of 1939 (15 U.S.C. 'SS''SS' 7aaa-7bbbb) as amended, as in force at the date of this Indenture as originally executed. "Trustee" means the party named as such in this Indenture until a successor replaces it and thereafter means the successor and if, at any time, there is more than one Trustee, "Trustee" as used with respect to the Securities of any Series shall mean the Trustee with respect to that Series. "Uncertificated Security" or "Uncertificated Securities" means any Security or Securities which is or are not a Certificated Security or Securities. "Unregistered Security" means any Security issued hereunder which is not a Registered Security. "Unsecured Subordinated Debt" means all Subordinated Debt of any Person other than Secured Subordinated Debt. "U.S. Government Obligations" means: (i) direct obligations of the United States of America for the payment of which the full faith and credit of the United States of America is pledged; or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States or America. "U.S. Person" means a citizen, national or resident of the United States, a corporation, partnership or other entity created or organized in or under the laws of the United States or any political subdivision thereof, or an estate or trust whose income from sources without the United States is includible in gross income for United States federal income tax purposes regardless of its connection with the conduct of a trade or business within the United States. "Yield to Maturity" means the yield to maturity, calculated by the Company at the time of issuance of a Series of Securities or at the time of issuance of the Securities of a Series or portion thereof, or, if applicable, at the most recent determination of interest on such Series or Securities in accordance with accepted financial practice. 8 SECTION 1.02. Other Definitions.
Term Section ---- ------- "Asset Drop-Down" 5.01 "Drop-Down Subsidiary" 5.01 "Event of Default" 6.01 "Legal Holiday" 10.06 "Paying Agent" 2.04 "Registrar" 2.04
SECTION 1.03. Incorporation by Reference of Trust Indenture Act. Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings: "Commission" means the SEC. "indenture securities" means the Securities. "indenture security holder" means a Holder or a Securityholder. "indenture to be so qualified" means this Indenture. "indenture trustee" or "institutional trustee" means the Trustee. "obligor" on the indenture securities means the Company and the Guarantor or any other obligor on the indenture securities. All other terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under TIA have the meanings assigned to them therein. SECTION 1.04. Rules of Construction. Unless the context otherwise requires: (1) a term has the meaning assigned to it; (2) an accounting term not otherwise defined has the meaning assigned to it in accordance with generally accepted accounting principles, and, except as may otherwise be herein expressly provided, the term "generally accepted 9 accounting principles" with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted at the date of such computation; (3) "or" is not exclusive; and (4) words in the singular include the plural, and words in the plural include the singular. ARTICLE 2 THE SECURITIES. SECTION 2.01. Issuable in Series. The aggregate principal amount of Securities which may be Authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more Series. There may be Registered Securities and Unregistered Securities within a Series and the Unregistered Securities may be subject to such restrictions, and contain such legends, as may be required by United States laws and regulations. Securities of a Series need not be identical but may differ with respect to maturity date, interest rate, redemption price, denominations, original issue date, issue price, and as to other terms. Securities of different Series may differ in any respect; provided that all Series of Securities shall be equally and ratably entitled to the benefits of this Indenture. SECTION 2.02. Establishment of Terms and Form of Series of Securities. (a) At or prior to the issuance of any Series of Securities, the following shall be established either by or pursuant to a Board Resolution or by an indenture supplemental hereto: (1) the title of the Securities of the Series (which title shall distinguish the Securities of the Series from the Securities of any other Series and from any other securities issued by the Company); (2) any limit upon the aggregate principal amount of the Securities of the Series which may be Authenticated and delivered under this Indenture (which limit shall not pertain to Securities Authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the Series pursuant to Section 2.08, 2.09, 2.11, 3.05 or 9.05); (3) the date or dates on which the principal of the Securities of the Series is payable, or whether the Securities of the Series are due upon demand by the Holder; 10 (4) the rate or rates at which the Securities of the Series shall bear interest, if any, or the method of calculating such rate or rates of interest, the date or dates from which such interest shall accrue, the dates on which such interest shall be payable and, with respect to Registered Securities, the record date for the interest payable on any interest payment date; (5) the place or places where the principal of and interest on Registered and Unregistered, if any, Securities of the Series shall be payable; (6) the period or periods within which, the price or prices at which, and the terms and conditions upon which, Securities of the Series may be redeemed, in whole or in part, at the option of the Company; (7) the obligation, if any, of the Company to redeem or purchase Securities of the Series pursuant to any sinking fund or analogous provisions or upon the happening of a specified event or at the option of a Holder thereof and the period or periods within which, the price or prices at which, and the terms and conditions upon which, Securities of the Series shall be redeemed or purchased, in whole or in part, pursuant to such obligation; (8) if in other than denominations of $1,000 and any integral multiple thereof, the denominations in which Securities of the Series shall be issuable; (9) if other than the principal amount thereof, the portion of the principal amount of Securities of the Series which shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.01; (10) whether Securities of the Series shall be issuable as Registered Securities or Unregistered Securities (with or without interest coupons), or both, whether if such Security is a Registered Security such Security shall be a Certificated Security or an Uncertificated Security, and any restrictions applicable to the payment, offering, sale or delivery of Unregistered Securities and whether, and the terms upon which, Unregistered Securities of a Series may be exchanged for Registered Securities of the same Series and vice versa; (11) whether and under what circumstances the Company will pay additional amounts on the Securities of that Series held by a person 11 who is not a U.S. Person in respect of taxes or similar charges withheld or deducted and, if so, whether the Company will have the option to redeem such Securities rather than pay such additional amounts; (12) the form of the Securities (or forms thereof if Unregistered and Registered Securities shall be issuable in such Series, including such legends as may be required by United States laws or regulations, the form of any coupons or temporary global Security which may be issued and the forms of any certificates which may be required hereunder or under United States laws or regulations in connection with the offering, sale, delivery or exchange of Unregistered Securities); (13) the coin or currency in which the Securities of the Series are denominated, including multiple currency units; (14) if other than the coin or currency in which the Securities of the Series are denominated, the coin or currency in which payment of the principal of, premium, if any, or interest on the Securities of the Series shall be payable; (15) if the amount of payments of principal of, premium, if any, or interest on the Securities of the Series may be determined with reference to one or more indices the manner in which such amounts shall be determined; (16) whether Securities of the Series are issuable as, or exchangeable for, one or more Global Securities and, in such case, the terms upon which interests in such Global Security or Global Securities shall be exchangeable by the Company or the Holder thereof for definitive Securities, and the identity of the Depositary for such Series; and (17) any other terms of the Series (which terms shall not be inconsistent with the provisions of this Indenture) including any terms which may be required by or advisable under United States laws or regulations or advisable in connection with the marketing of Securities of that Series. (b) If the terms and form or forms of any Series of Securities are established by or pursuant to a Board Resolution, the Company shall deliver a copy of such Board Resolution to the Trustee at or prior to the issuance of such Series with (1) the form or forms of Security which have been approved attached thereto, or (2) if such Board Resolution authorizes a specific Officer or Officers to approve the terms and form or forms of the Securities, a certificate 12 of such Officer or Officers approving the terms and form or forms of Security with such form or forms of Securities attached thereto; provided that if such Security is to be an Uncertificated Security, then no such form of Security need be delivered to the Trustee and in lieu thereof of the Company shall deliver to the Trustee a summary statement of the principal terms and conditions of such Uncertificated Securities, to the extent not already set forth pursuant to a Board Resolution establishing such Series of Uncertificated Securities. Such Board Resolution or certificate may provide general terms or parameters for Securities of any Series and may provide that the specific terms of particular Securities of a Series may be determined in accordance with or pursuant to the Company Order referred to in Section 2.03(d) hereof. SECTION 2.03. Execution, Authentication and Delivery. (a) Certificated Securities shall be executed on behalf of the Company by its Chairman of the Board of Directors, the Vice-Chairman of the Board of Directors, the Chief Executive Officer, the President, a Vice-President, the Chief Financial Officer, the Treasurer, or an Assistant Treasurer, under its corporate seal reproduced thereon and attested by its Secretary or an Assistant Secretary. Signatures shall be manual or facsimile. The coupons of Unregistered Securities shall bear the facsimile signature of the Treasurer or an Assistant Treasurer of the Company. (b) If an Officer, an Assistant Treasurer or an Assistant Secretary whose signature is on a Certificated Security or coupon no longer holds that office at the time the Certificated Security is Authenticated, the Certificated Security or coupon shall be valid nevertheless. (c) A Security shall not be valid until Authenticated by the manual signature of the Trustee or an authenticating agent and no coupon shall be valid until the Security to which it appertains has been so Authenticated. Such signature shall be conclusive evidence that the Security has been Authenticated under this Indenture. Each Unregistered Security shall be dated the date of its original issuance and each Registered Security shall be dated the date of its Authentication. Notwithstanding the foregoing, an Uncertificated Security shall be valid when Authenticated by the Trustee or authenticating agent. (d) The Trustee shall Authenticate and deliver Securities of any Series for original issue from time to time in the aggregate principal amount established for such Series pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by a Company Order; provided that in the case of Uncertificated Securities of any Series there shall be no delivery requirement. The maturity date, original issue date, interest rate and any other terms of the Securities of such Series shall be determined by or pursuant to such Company Order and procedures. If provided for in such procedures, such Company Order may authorize Authentication and delivery pursuant to oral instructions from the Company or its duly authorized agent, which instructions shall be promptly confirmed in writing. 13 The Trustee may conclusively rely on the documents and opinion delivered pursuant to Section 2.02 and this Section 2.03, as applicable (unless revoked by superseding comparable documents or opinions) as to the authorization of the Board of Directors of any Securities delivered hereunder, the form thereof and the legality, validity, binding effect and enforceability thereof. If the form and general terms of the Securities of any Series have been established by or pursuant to one or more Board Resolutions as permitted by Section 2.02, in Authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 7.01) shall be fully protected in relying upon, in addition to the documents required by Section 10.04, an Opinion of Counsel stating, (1) the form and general terms of such Securities have been established in conformity with the provisions of this Indenture; (2) that Securities in such form, when completed as to specific terms substantially in accordance with the Board Resolution establishing such form or any actions taken pursuant thereto (the records of which actions shall have been evidenced as provided in such Board Resolution), when Authenticated in accordance with this Indenture, all in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting the enforcement of creditors' rights and to general equity principles; and (3) the Guarantee in respect of the Securities constitutes a valid and legally binding obligation of the Guarantor, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting the enforcement of creditors' rights and to general equity principles. If the terms and form or forms of such Securities have been established by or pursuant to a Board Resolution as permitted by Section 2.02, the Trustee shall not be required to Authenticate such Securities if the issue of such Securities pursuant to this Indenture will adversely affect the Trustee's own rights, duties, or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee. Notwithstanding the foregoing, until the Company has delivered an Officers' Certificate to the Trustee and the Registrar stating that, as a result of the action described in such notice, the Company would not suffer adverse consequences under the provisions of United States law or regulations in effect at the time of the delivery of Unregistered Securities, (i) delivery of Unregistered Securities will be made only outside the United States and its 14 possessions and (ii) Unregistered Securities will be released in definitive form whether in the form of a Global Security or otherwise to the Person entitled to physical delivery thereof only upon presentation of a certificate in the form prescribed by the Company and set forth in or annexed to such Officers' Certificate. (e) The aggregate principal amount of Securities of any Series outstanding at any time may not exceed any limit upon the maximum principal amount for such Series set forth in the Board Resolution (or certificate of an Officer or Officers) or supplemental indenture pursuant to Section 2.02. (f) The form of the Trustee's Certificate of Authentication to appear on Certificated Securities shall read as follows: "This is one of the Certificated Securities of the Series designated therein referred to in the within-mentioned Indenture. The Chase Manhattan Bank, as Trustee By _________________________ Authorized Officer" (g) The Company hereby acknowledges that the failure to endorse the Guarantee on Certificated Securities shall not affect or impair the validity or enforceability of such Guarantee. SECTION 2.04. Registrar and Paying Agent. The Company shall maintain in the Borough of Manhattan, The City of New York, State of New York, any office or agency where Registered Securities may be presented for registration of transfer or for exchange ("Registrar") and an office or agency where (subject to Sections 2.05 and 2.08) Securities may be presented for payment or for exchange ("Paying Agent"). With respect to any Series of Securities issued in whole or in part as Unregistered Securities, the Company shall maintain one or more Paying Agents located outside the United States and its possessions and shall maintain such Paying Agents for a period of two years after the principal of such Unregistered Securities has become due and payable. During any period thereafter for which it is necessary in order to conform to United States tax law or regulations, the Company will maintain a Paying Agent outside the Untied States and its possession to which the Unregistered Securities or coupons appertaining thereto may be presented for payment and will provide the necessary funds therefor to such Paying Agent with reasonable notice. The Registrar shall keep a register with respect to each Series of Securities issued in whole or in part as Registered Securities and to their transfer and exchange. The Company may appoint one or more co-Registrars and one or more additional Paying Agents for each Series of Securities and the Company may terminated the appointment of any co-Registrar or Paying Agent at any time 15 upon written notice. The term "Registrar" includes any co-Registrar, except that any co- Registrar shall not keep the register. The term "Paying Agent" includes any additional Paying Agent. The Company shall notify the Trustee of the name and address of any Agent not a party to this Indenture. If the Company fails to maintain a Registrar or Paying Agent, the Trustee shall act as such. The Company initially appoints the Trustee as Registrar and Paying Agent. SECTION 2.05. Payment on Securities. (a) Subject to the following provisions, the Company will pay to the Trustee the amounts of principal of and interest on the Securities at the times and for the purposes set forth herein and in the text or provided for in the terms of the Securities for each Series, and the Company hereby authorizes and directs the Trustee from funds so paid to it to make or cause to be made payment of the principal of and interest, if any, on the Securities and coupons of each Series as set forth herein and in the text or provided for in the terms of such Securities and coupons. Except as otherwise provided with respect to any Series of Securities, the Trustee will arrange directly with any Paying Agent for the payment, or the Trustee will make payment, from funds furnished by the Company, of the principal of and interest, if any, on the Securities and coupons of each Series by check in the currency in which the Securities are payable. (b) Except as otherwise provided with respect to a Series of Securities, interest, if any, on Registered Securities of a Series shall be paid on each interest payment date for such Series to the Holder thereof at the close of business on the relevant record dates specified in the Securities of such Series. The Company may pay such interest by check mailed to such Holder's address as it appears on the register for Securities of such Series. Principal of Registered Securities that are Certificated Securities shall be payable only against presentation and surrender thereof at the office of the Paying Agent in New York, unless the Company shall have otherwise instructed the Trustee in writing. Principal of Registered Securities that are Uncertificated Securities shall be paid by check payable to the Holder mailed to its address as shown on the books of the Registrar, unless the Company shall have otherwise instructed the Trustee in writing. If a payment date is a Legal Holiday at a place of payment, payment may be made at such place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue with respect to such payment for the intervening period, except in the case of interest (other than interest payable at maturity) payable on any Security that bears interest at a floating rate, in which case interest shall accrue for such intervening period. (c) To the extent provided in the Securities of a Series, (i) payments with respect to which coupons have been issued by the Company shall be paid only against presentation and surrender of the coupons as they mature and (ii) original issue discount (as defined in Section 1273 of the Internal Revenue Code of 1986, as amended), if any, on Unregistered Securities with respect to which coupons have not been issued shall be paid only against presentation and surrender of such Securities; in either case at the office of a Paying Agent located outside of the United States and its possessions, unless the Company shall have 16 otherwise instructed the Trustee in writing. Principal of Unregistered Securities shall be paid only against presentation and surrender thereof as provided in the Securities of a Series. If at the time a payment of principal of or interest, if any, or original issue discount, if any, on an Unregistered Security or coupon shall become due, the payment of the full amount so payable at the office or offices of all the Paying Agents outside the United States and its possessions is illegal or effectively precluded because of the impositions of exchange controls or other similar restrictions on the payment of such amount in the applicable currency, then the Company may instruct the Trustee to make such payments at the office of a Paying Agent located in the United States, provided that provision for such payment in the United States would not cause such Unregistered Security to be treated as a "registration-required obligation" under United States law and regulations. SECTION 2.06. Paying Agent to Hold Money in Trust. The Company shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust, for the benefit of Securityholders of any or all Series of Securities, or the Trustee, all money held by the Paying Agent for the payment of principal or interest on such Series of Securities, and that the Paying Agent will notify the Trustee of any default by the Company in making any such payment and while any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. If the Company or any of its Subsidiaries act as Paying Agent, it shall segregate the money held by it for the payment of principal or interest on any Series of Securities and hold such money as a separate trust fund. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon so doing the Paying Agent shall have no further liability for the money so paid. SECTION 2.07. Securityholder Lists; Ownership of Securities. (a) The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders of each Series of Securities. If the Trustee is not the Registrar, the Company shall furnish to the Trustee semi-annually on or before the last day of June and December in each year, and at such other times as the Trustee may request in writing, a list, in such form and as of such date as the Trustee may reasonably require, containing all the information in the possession or control of the Registrar, the Company or any of its Paying Agents other than the Trustee as to the names and addresses of Holders of each such Series of Securities. If there are Unregistered Securities of any Series outstanding, even if the Trustee is the Registrar, the Company shall furnish to the Trustee such a list containing such information with respect to Holders of such Unregistered Securities only. (b) Ownership of Registered Securities of a Series shall be proved by the register for such Series kept by the Registrar. Ownership of Unregistered Securities may be proved by the production of such Unregistered Securities or by a certificate or affidavit executed by the Person holding such Unregistered Securities or by a depository with whom such 17 Unregistered Securities have been deposited, if the certificate or affidavit is satisfactory to the Trustee. The Company, the Trustee and any agent of the Company or the Trustee may treat the bearer of any Unregistered Security or coupon and the Person in whose name a Registered Security is registered as the absolute owner thereof for all purposes. SECTION 2.08. Transfer and Exchange. (a) Where Registered Securities of a Series (other than Securities which, pursuant to the Board Resolution or supplemental indenture establishing the terms of the Series to which the Securities belong, are not transferable) are presented to the Registrar with a request to register their transfer or to exchange them for an equal principal amount of Registered Securities of the same Series, date of maturity, interest rate, and original issue date of other authorized denominations, the Registrar shall register the transfer or make the exchange if its requirements for such transactions are met. (b) If both Registered and Unregistered Securities are authorized for a Series of Securities and the terms of such Securities permit, (i) Unregistered Securities may be exchanged for an equal principal amount of Registered or Unregistered Securities of the same Series, date of maturity, interest rate, and original issue date in any authorized denominations upon delivery to the Registrar (or a Paying Agent, if the exchange is for Unregistered Securities) of the Unregistered Security with all unmatured coupons and all matured coupons in default appertaining thereto and if all other requirements of the Registrar (or such Paying Agent) and such Securities for such exchange are met, and (ii) Registered Securities may be exchanged for an equal principal amount of Unregistered Securities of the same Series, date of maturity, interest rate, and original issue date in any authorized denominations (except that any coupons appertaining to such Unregistered Securities which have matured and have been paid shall be detached) upon delivery to the Registrar of the Registered Securities and if all other requirements of the Registrar (or such Paying Agent) and such Securities for such exchange are met. Notwithstanding the foregoing, the exchange of Unregistered Securities for Registered Securities or Registered Securities for Unregistered Securities will be subject to the satisfaction of the provisions of United States law and regulations in effect at the time of such exchange, and no exchange of Registered Securities for Unregistered Securities will be made until the Company has notified the Trustee and the Registrar that, as a result of such exchange, the Company would not suffer adverse consequences under such law or regulations. (c) To permit registrations of transfers and exchanges, the Trustee shall Authenticate Securities upon surrender of Securities for registration of transfer or for exchange as provided in this Section. The Company will not make any charge for any registration of transfer or exchange but may require the payment by the party requesting such registration of transfer or exchange of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. 18 (d) Neither the Company nor the Registrar shall be required (i) to issue, register the transfer of or exchange Securities of any Series for the period of 15 days immediately preceding the selection of any such Securities to be redeemed, or (ii) to register the transfer of or exchange Securities of any Series selected, called or being called for redemption as a whole or the portion being redeemed of any such Securities selected, called or being called for redemption in part. (e) Unregistered Securities or any coupons appertaining thereto shall be transferable by delivery. SECTION 2.09. Replacement Securities. (a) If a mutilated Security or a Security with a mutilated coupon appertaining to it is surrendered to the Trustee, the Company shall issue and the Trustee shall Authenticate a replacement Registered Security, if such surrendered Security was a Registered Security, or a replacement Unregistered Security with coupons corresponding to the coupons appertaining to the surrendered Security, if such surrendered Security was an Unregistered Security, of the same Series, date of maturity, interest rate, and original issue date if the Trustee's requirements are met. (b) If the Holder of a Security claims that the Security or any coupon appertaining thereto has been lost, destroyed or wrongfully taken, the Company shall issue and the Trustee shall Authenticate a replacement Registered Security, if such Holder's claim pertains to a Registered Security, or a replacement Unregistered Security with coupons corresponding to the coupons appertaining to the lost, destroyed or wrongfully taken Unregistered Security or the Unregistered Security to which such lost, destroyed or wrongfully taken coupon appertains, if such Holder's claim pertains to an Unregistered Security, of the same Series, date of maturity, interest rate, and original issue date, if the Trustee's requirements are met; provided, however, that the Trustee or the Company may require any such Holder to provide to the Trustee or the Company security or indemnity sufficient in the judgment of the Company and the Trustee to protect the Company, the Trustee, any Agent or any authenticating agent from any loss which any of them may suffer if a Security is replaced. The Company may charge the party requesting a replacement Security for its expenses in replacing a Security. (c) Every replacement Security is an additional obligation of the Company. SECTION 2.10. Outstanding Securities. (a) Securities outstanding at any time are all Securities Authenticated by the Trustee or an authenticating agent except for those canceled by it, those Certificated Securities delivered to it for cancellation, those Uncertified Securities for which the Trustee or the Registrar has received valid cancellation instructions and those Securities described in this Section as not outstanding. 19 (b) If a Security is replaced pursuant to Section 2.09, it ceases to be outstanding until the Trustee receives proof satisfactory to it that the replaced Security is held by a bona fide purchaser. (c) If the Paying Agent holds on a redemption date or maturity date money sufficient to pay all amounts due on Securities of such Series, they shall cease to be outstanding and interest on them shall cease to accrue. (d) Any acquisition of any Security by the Company or an Affiliate shall not operate as a redemption or satisfaction of the indebtedness represented by such Security unless and until the same is canceled and delivered to the Trustee or surrendered to the Trustee for cancellation. (e) In determining whether the Holders of the requisite principal amount of outstanding Securities of any Series have given any request, demand, authorization, direction, notice, consent or waiver hereunder, or whether sufficient funds are available for redemption or for any other purpose, the principal amount of an Original Issue Discount Security that shall be deemed to be outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the maturity thereof pursuant to Section 6.01. SECTION 2.11. Temporary Securities; Global Securities. (a) Until definitive Registered Securities of any Series are ready for delivery, the Company may prepare and execute and the Trustee shall authenticate temporary Registered Securities of such Series. Temporary Registered Securities of any Series shall be substantially in the form of definitive Registered Securities of such Series but may have variations that the Company considers appropriate for temporary Securities. Every temporary Registered Security shall be executed by the Company and authenticated by the Trustee, and registered by the Registrar, upon the same conditions, and with like effect, as a definitive Registered Security. Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate definitive Registered Securities of the same Series, date of maturity, interest rate, and original issue date in exchange for temporary Registered Securities. All references herein to "definitive Registered Securities" shall be deemed to apply equally to permanent global Registered Securities. (b) Until definitive or permanent global Unregistered Securities of any Series are ready for delivery, the Company may prepare and execute and the Trustee shall authenticate one or more temporary Unregistered Securities, which may have coupons attached or which may be in the form of a single temporary global Unregistered Security of that Series. The temporary Unregistered Security or Securities of any Series shall be substantially in the form approved by or pursuant to a Board Resolution and shall be delivered outside the United States and its possession to such Person or Persons as the Company shall direct against such certification as the Company may from time to time prescribe by or pursuant to a Board Resolution. The temporary 20 Unregistered Security or Securities of a Series shall be executed by the Company and authenticated by the Trustee upon the same conditions, and with like effect, as a definitive Unregistered Security of such Series, except as provided herein or therein. A temporary Unregistered Security or Securities shall be exchangeable for definitive or permanent global Unregistered Securities at the time and on the conditions, if any, specified in the temporary Security. (c) Upon any exchange of a part of a temporary or permanent global Unregistered Security of a Series for definitive or permanent global Unregistered Securities of such Series, the temporary or permanent global Unregistered Security, as the case may be, shall be endorsed by the Trustee or an authenticating agent for the Trustee to reflect the reduction of its principal amount by an amount equal to the aggregate principal amount of definitive or permanent Unregistered Securities, as the case may be, of such Series so exchanged and endorsed. Upon any exchange of a part of a temporary or permanent global Registered Security of a Series for definitive or permanent global Registered Securities of such Series, the temporary or permanent global Registered Security, as the case may be, shall be endorsed by the Trustee or an authenticating agent for the Trustee to reflect the reduction of its principal amount by an amount equal to the aggregate principal amount of definitive or permanent Registered Securities, as the case may be, of such Series so exchanged and endorsed. (d) If the Company shall establish pursuant to Section 2.02 that the Securities of a particular Series are to be issued as one or more Global Securities, then the Company shall execute and the Trustee shall, in accordance with Section 2.03 and the Company Order delivered to the Trustee thereunder, authenticate and deliver to the Depositary or pursuant to the Depositary's instruction one or more Global Securities. Each Global Security shall bear a legend substantially to the following effect: "Except as otherwise provided in Section 2.11 of the Indenture, this Security may be transferred, in whole but not in part, only to another nominee of the Depositary or to a successor Depositary or to a nominee of such successor Depositary." (e) Notwithstanding any other provision of this Section 2.11 or of Section 2.08, except for exchanges of Global Securities as provided in Section 2.11(c), a Global Security may be transferred, in whole but not in part and in the manner provided in Section 2.08, only to another nominee of the Depositary for such Series, or to a successor Depositary for such Series selected or approved by the Company or to a nominee of such successor Depositary. (f) If at any time the Depositary for a Series of Securities notifies the Company that it is unwilling or unable to continue as Depositary for such Series or, with respect to a Depositary for such Series or, with respect to a Depositary contemplated by clause (ii) of the definition thereof, if at any time the Depositary for such Series shall no longer be registered or in good standing under the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation and, in any such case, a successor Depositary for such Series is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such condition, as the case may be, this Section 2.11 shall no longer be applicable to the Securities of such Series and the Company will execute, and the Trustee will authenticate and deliver in accordance with a Company Order, Securities of such Series in definitive registered 21 form without coupons, or in definitive bearer form with coupons, as applicable, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the Global Security of such Series in exchange for such Global Security. (g) With the prior written consent of the Company with respect to a Series of Registered Securities, the Depositary for such Series of Securities may surrender a Global Security for such Series of Securities in exchange in whole or in part for Securities of such Series of like tenor and terms and in definitive form on such terms as are acceptable to the Company and such Depositary. Thereupon the Company shall execute, and the Trustee shall authenticate and deliver, without service charge, (i) to each Person specified by such Depositary (pursuant to instructions from its direct or indirect participants or otherwise) a new Security or Securities of the same Series, of like tenor and terms and of any authorized denomination as requested by such Person in aggregate principal amount equal to and in exchange for such Person's beneficial interest in the Global Security; and (ii) in the event the principal amount of the surrendered Global Security exceeds the aggregate principal amount of Securities delivered to Holders pursuant to the preceding clause (i), to such Depositary a new Global Security of like tenor and terms and in an aggregate principal amount equal to such excess. SECTION 2.12. Cancellation. The Company at any time may deliver Certificated Securities and coupons to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Certificated Securities and coupons surrendered to them, for registration of transfer, or for exchange or payment. The Trustee shall cancel all Certificated Securities and coupons surrendered for registration of transfer, or for exchange, payment or cancellation and may dispose of canceled Certificated Securities and coupons as the Company directs; provided, however, that any Unregistered Certificated Securities of a Series delivered to the Trustee for exchange prior to maturity shall be retained by the Trustee for reissue as provided herein or in the Certificated Securities of such Series. The Company may not issue new Certificated Securities of a Series to replace Certificated Securities of such Series that it has paid or delivered to the Trustee for cancellation. SECTION 2.13. Defaulted Interest. If the Company defaults on a payment of interest on a Series of Securities, the Company shall pay the defaulted interest as provided in such Securities or in any lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed and acceptable to the Trustee. 22 ARTICLE 3 REDEMPTION. SECTION 3.01. Notice to Trustee. The Company may, with respect to any Series of Securities, reserve the right to redeem and pay the Series of Securities or any part thereof, or may covenant to redeem and pay the Series of Securities or any part thereof, before maturity at such time and on such terms as provided for in such Securities. If a Series of Securities is redeemable and the Company wants or is obligated to redeem all or part of the Series of Securities pursuant to the terms of such Securities, it shall notify the Trustee of the redemption date and the principal amount of the Series of Securities to be redeemed. The Company shall give sixty days advance notice to the Trustee before the redemption date or such lesser notice as shall be satisfactory to the Trustee. SECTION 3.02. Selection of Securities to be Redeemed. Upon notice that less than all the Securities of a Series are to be redeemed, the Trustee shall thereupon select the Securities of the Series to be redeemed in such manner as the Trustee shall deem fair and appropriate, such selection to be made from Securities of the Series that are outstanding and that have not previously been called for redemption. Securities of the Series and portions of them selected by the Trustee shall be in amounts of $1,000 or integral multiples of $1,000 or, with respect to Securities of any Series issuable in other denominations pursuant to Section 2.02(a)(8), in amounts equal to the minimum principal denomination for each such Series and integral multiples thereof. Provisions of the Indenture that apply to Securities of a Series called for redemption also apply to portions of Securities of that Series called for redemption. The Trustee shall promptly notify the Company in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed. SECTION 3.03. Notice of Redemption (a) At least 30 days but not more than 90 days before a redemption date, the Company shall mail a notice of redemption by first-class mail to each Holder of Registered Securities that are to be redeemed. (b) If Unregistered Securities are to be redeemed, notice of redemption shall be published by the Company in an Authorized Newspaper in the City of New York, and if such Securities to be redeemed are listed on the London Stock Exchange, London, and, if such Securities to be redeemed are listed on the Luxembourg Stock Exchange, Luxembourg, once in each of four successive calendar weeks, the first publication to be not less than 30 nor more than 90 days before the redemption date. 23 (c) All notices shall identify the Series of Securities to be redeemed and shall state: (1) the redemption date; (2) the redemption price; (3) if less then all the outstanding Securities of a Series are to be redeemed, the identification (and, in the case of partial redemption, the principal amounts) of the particular Securities to be redeemed; (4) the name and address of the Paying Agent; (5) the Securities of the Series called for redemption and that all unmatured coupons, if any, appertaining thereto must be surrendered to the Paying Agent to collect the redemption price; (6) that interest on Securities of the Series called for redemption ceases to accrue on and after the redemption date; and (7) if redemption is for a mandatory or optional sinking fund payment. At the Company's request, the Trustee shall give the notice of redemption in the Company's name and at its expense. SECTION 3.04. Effect of Notice of Redemption. Once notice of redemption is mailed or published, Securities of a Series called for redemption become due and payable on the redemption date. Upon surrender to the Paying Agent of such Securities together with all unmatured coupons, if any, appertaining thereto, such Securities will be paid at the redemption price plus accrued interest to the redemption date, but regular installments of interest due on or prior to the redemption date will be payable, in the case of Unregistered Securities, to the bearers of the coupons for such interest upon surrender thereof, and, in the case of Registered Securities (except as otherwise provided with respect to the Securities of a Series), to the Holders of such Securities of record at the close of business on the relevant record dates; provided that in the case of Securities that are Uncertificated Securities, no such surrender shall be required and the redemption price shall be paid to the Holders of such Uncertificated Securities of record at the close of business on the redemption date (except as otherwise provided with respect to the Securities of a Series). 24 SECTION 3.05. Deposit of Redemption Price. On or before the redemption date, the Company shall deposit with the Trustee money sufficient to pay the redemption price of and (unless the redemption date shall be an interest payment date) interest accrued to the redemption date on all Securities to be redeemed on that date. Upon surrender of a Certificated Security that is redeemed in part, the Company shall issue and the Trustee shall authenticate for the Holder of that Security a new Security or Securities of the same Series, the same form and the same date of maturity, interest rate, and original issue date in authorized denominations equal in aggregate principal amount to the unredeemed portion of the Security surrendered. SECTION 3.06. Mandatory and Optional Sinking Funds. The minimum amount of any sinking fund payment provided for by the terms of any Series of Securities is herein referred to as a "mandatory sinking fund payment," and any payment in excess of such minimum amount provided for by the terms of any Series of Securities is herein referred to as an "optional sinking fund payment." The date on which a sinking fund payment is to be made is herein referred to as the "sinking fund payment date". In lieu of making all or any part of any mandatory sinking fund payment with respect to any Series of Securities in cash, the Company may at its option (a) deliver to the Trustee Securities of such Series theretofore purchased or otherwise acquired (except upon redemption pursuant to the mandatory sinking fund) by the Company or receive credit for Securities of such Series (not previously so credited) theretofore purchased or otherwise acquired (except as aforesaid) by the Company and delivered to the Trustee for cancellation pursuant to Section 2.12, (b) receive credit for optional sinking fund payments (not previously so credited) made pursuant to this Section, or (c) receive credit for Securities of such Series (not previously so credited) redeemed by the Company through any optional redemption provision contained in the terms of such Series. Securities so delivered or credited shall be received or credited by the Trustee at the sinking fund redemption price specified in such Securities. On or before the sixtieth day next preceding each sinking fund payment date for any Series, the Company will deliver to the Trustee a written statement signed by an Officer of the Company (a) specifying the portion of the mandatory sinking fund payment to be satisfied by payment of cash and the portion to be satisfied by credit of Securities of such Series, (b) stating that none of the Securities of such Series has theretofore been so credited, (c) stating that no defaults in the payment of interest or Events of Default with respect to such Series have occurred (which have not been waived or cured) and are continuing, (d) stating whether or not the Company intends to exercise its right to make an optional sinking fund payment with respect to such Series and, if so, specifying the amount of such optional sinking fund payment which the Company intends to pay on or before the next succeeding sinking fund payment date, and (e) specifying such sinking fund payment date. Any Securities of such Series to be credited and 25 required to be delivered to the Trustee in order for the Company to be entitled to credit therefor as aforesaid which have not theretofore been delivered to the Trustee shall be delivered for cancellation pursuant to Section 2.12 to the Trustee with such written statement (or reasonably promptly thereafter if acceptable to the Trustee). Such written statement shall be irrevocable and upon its receipt by the Trustee the Company shall become unconditionally obligated to make all the cash payments or payments therein referred to, if any, on or before the next succeeding sinking fund payment date. Failure of the Company, on or before any such sixtieth day, to deliver such written statement and Securities specified in this paragraph, if any, shall not constitute a default but shall constitute, on and as of such date, the irrevocable election of the Company (i) that the mandatory sinking fund payment for such Series due on the next succeeding sinking fund payment date shall be paid entirely in cash without the option to deliver or credit Securities of such Series in respect thereof and (ii) that the Company will make no optional sinking fund payment with respect to such Series as provided in this Section. If the sinking fund payment or payments (mandatory or optional or both) to be made in cash on the next succeeding sinking fund payment date plus any unused balance of any preceding sinking fund payments made in cash shall exceed $50,000 (or a lesser sum if the Company shall so request) with respect to the Securities of any particular Series, such cash shall be applied on the next succeeding sinking fund payment date to the redemption of Securities of such Series at the sinking fund redemption price together with accrued interest to the date fixed for redemption. If such amount shall be $50,000 or less and the Company makes no such request then it shall be carried over until a sum in excess of $50,000 is available. The Trustee shall select, in the manner provided in Section 3.02, for redemption on such sinking fund payment date a sufficient principal amount of Securities of such Series to absorb said cash, as nearly as may be possible, and shall (if requested in writing by the Company) inform the Company of the serial numbers of the Securities of such Series (or portions thereof) so selected. Securities of any Series which are (a) owned by the Company or a Person known by the Trustee to be directly or indirectly controlling or controlled by or under direct or indirect common control with the Company, as shown by the Security register, and not known to the Trustee to have been pledged or hypothecated by the Company or any such entity or (b) identified in an Officers' Certificate at least 60 days prior to the sinking fund payment date as being beneficially owned by, and not pledged or hypothecated by, the Company or a Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company shall be excluded from Securities of such Series eligible for selection for redemption. The Trustee, in the name and at the expense of the Company (or the Company, if it shall so request the Trustee in writing) shall cause notice of redemption of the Securities of such Series to be given in substantially the manner provided in Section 3.03 (and with the effect provided in Section 3.04) for the redemption of Securities of such Series in part at the option of the Company. The amount of any sinking fund payments not so applied or allocated to the redemption of Securities of such Series shall be added to the next cash sinking fund payment for such Series and, together with such payment, shall be applied in accordance with the provisions of this Section. Any and all sinking fund moneys held on the stated maturity date of the Securities of any particular Series (or earlier, if such maturity is accelerated), which are not held for the payment or redemption of particular Securities of such Series shall be applied, together with other moneys, if necessary, sufficient for 26 the purpose, to the payment of the principal of, and interest on, the Securities of such Series at maturity. At least one business day before each sinking fund payment date, the Company shall pay to the Trustee in cash or shall otherwise provide for the payment of all interest accrued to the date fixed for redemption on Securities to be redeemed on the next following sinking fund payment date. The Trustee shall not redeem or cause to be redeemed any Securities of a Series with sinking fund moneys or mail any notice of redemption of Securities for such Series by operation of the sinking fund during the continuance of a default in payment of interest on such Securities or of any Event of Default except that, where the mailing of notice of redemption of any Securities shall theretofore have been made, the Trustee shall redeem or cause to be redeemed such Securities, provided that it shall have received from the Company a sum sufficient for such redemption. Except as aforesaid, any moneys in the sinking fund for such Series at the time when any such default or Event of Default shall occur, and any moneys thereafter paid into the sinking fund, shall, during the continuance of such default or Event of Default, be deemed to have been collected under Article Six and held for the payment of all such Securities. In case such Event of Default shall have been waived as provided in Section 6.06 or the default cured on or before the sixtieth day preceding the sinking fund payment date in any year, such moneys shall thereafter be applied on the next succeeding sinking fund payment date in accordance with this Section to the redemption of such Securities. SECTION 3.07. Prepayment Upon Certain Taxation Events Where further to the terms of any Series of Securities the Company becomes subject to payment of an Additional Amount in accordance with Section 4.05, the Company may, at its option and (notwithstanding Section 3.01) upon giving notice to that effect of at least 30 days to the Trustee and to the holders of Securities of that Series, redeem all the Securities of that Series then outstanding, at their principal amount together with interest accrued thereon to the date fixed for redemption. The Company's right to prepay pursuant to this Section 3.07 shall continue as long as the Company is obligated to pay such Additional Amounts in respect of Securities of such Series, notwithstanding that the Company may have made payments of Additional Amounts. ARTICLE 4 COVENANTS. SECTION 4.01. Payment of Securities. The Company shall pay the principal of and interest on the Securities on the dates and in the manner provided herein and in the Securities. An installment of principal or interest shall be considered paid on the date it is due if the Trustee or Paying Agent holds on that date 27 money designated for and sufficient to pay the installment. If the Securities of a Series provide for the payment of additional amounts as contemplated by Section 2.02(a)(11), at least 10 days prior to the first interest payment date with respect to that Series of Securities (or if the Securities of that Series will not bear interest prior to maturity, the first day on which a payment of principal and any premium is made), and at least 10 days prior to each date of payment of principal and any premium or interest if there has been any change with respect to the matters set forth in the below-mentioned Officers' Certificate, the Company will furnish the Trustee and the Company's principal Paying Agent or Paying Agents, if other than the Trustee, with an Officers' Certificate instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal of and interest on the Securities of that Series shall be made to Holders of Securities of that Series or any related coupons who are not U.S. Persons without withholding for or on account of any tax, assessment or other governmental charge described in the Securities of the Series. If any such withholding shall be required, then such Officers' Certificate shall specify by country the amount, if any, required to be withheld on such payments to such Holders of Securities or coupons and the Company will pay to the Trustee or such Paying Agent such additional amounts as may be required pursuant to the terms applicable to such Series. The Company covenants to indemnify the Trustee and any Paying Agent for, and to hold them harmless against, any loss, liability or expense reasonably incurred without negligence or bad faith on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers' Certificate furnished pursuant to this Section. SECTION 4.02. Reports by the Company. The Company covenants: (a) to file with the Trustee, within 15 days after the Company or the Guarantor is required to file the same with the SEC or the Ontario Securities Commission, as applicable, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC or the Ontario Securities Commission, as applicable, may from time to time by rules and regulations prescribe) which the Company or the Guarantor may be required to file with the SEC or the Ontario Securities Commission; or, if the Company or the Guarantor is not required to file such information, documents or reports, then to file with the Trustee, in accordance with rules and regulations prescribed from time to time by the SEC, such information, documents and reports which may be required pursuant to section 13 of the Securities Exchange Act of 1934, as amended, in respect of a security listed and registered on a national securities exchange as the SEC may prescribe from time to time in its rules and regulations; (b) to file with the Trustee, the SEC and the Ontario Securities Commission, in accordance with the rules and regulations prescribed from time to time by the SEC or the Ontario Securities Commission, as applicable, such additional information, documents, and reports with respect to compliance by the Company and the Guarantor with the conditions and covenants provided for in this Indenture as may be required from time to time by such rules and regulations; 28 (c) to transmit by mail to all Holders of Registered Securities, as the names and addresses of such Holders appear on the register for each Series of Securities, and to such Holders of Unregistered Securities as have, within the two years preceding such transmission, filed their names and addresses with the Trustee for that purpose, within 30 days after the filing thereof with the Trustee, and to all Holders whose names appear on the list furnished to the Trustee by the Company under Section 2.07(a), such summaries of any information, documents and reports required to be filed by the Company and the Guarantor pursuant to subsections (a) and (b) of this Section 4.02 as may be required by rules and regulations prescribed from time to time by the SEC; and (d) in the case of Uncertificated Securities for which the Trustee does not act as Registrar, to file with the Trustee at the time it files the annual or quarterly reports required to be filed pursuant to paragraph (a) hereof or at such other times as the Trustee may reasonably request, a statement of the aggregate amount of such Uncertificated Securities issued and outstanding hereunder. SECTION 4.03. Limitations on Incurrence of Secured Debt. (a) The Company will not, nor will it permit any Restricted Subsidiary to, create or incur, or suffer to be incurred or to exist, any Lien on its or their property or assets, whether now owned or hereafter acquired, or upon any income or profits therefrom, or transfer any property for the purpose of subjecting the same to the payment of obligations in priority to the payment of its or their general creditors, or acquire or agree to acquire, or permit any Restricted Subsidiary to acquire, any property or assets upon conditional sales agreements or other title retention devices, without thereupon expressly securing the due and punctual payment of the principal of, premium, if any, and the interest on the Securities of each Series equally and ratably with any and all other obligations and indebtedness secured by such Lien, so long as any such other obligations and indebtedness shall be so secured, and the Company covenants that if and when any such Lien is created, the Securities of each Series will be so secured thereby. Notwithstanding the foregoing, this Section shall neither limit nor be deemed or construed as limiting the right of the Company or any Restricted Subsidiary to create or incur, or suffer to be incurred or to exist, any one or more of the following Liens: (i) Liens for property taxes and assessments or governmental charges or levies and Liens securing claims or demands of mechanics and materialmen; (ii) Liens of or resulting from any judgment or award, the time for the appeal or petition for rehearing of which shall not have expired, or in respect of which the Company or a Restricted Subsidiary shall at any time in good faith be prosecuting an appeal or proceeding for a review and in respect of which a stay of execution pending such appeal or proceeding for review shall have been secured; (iii) Liens incidental to the conduct of business or the ownership of properties and assets (including Liens in connection with worker's compensation, unemployment insurance and other like laws, warehousemen's and 29 solicitors' liens and statutory landlords' liens) and Liens to secure the performance of bids, tenders or trade contracts, or to secure statutory obligations, surety or appeal bonds or other Liens of like general nature incurred in the ordinary course of business and not in connection with the borrowing of money; provided in each case, the obligation secured is not overdue or, if overdue, is being contested in good faith by appropriate actions or proceedings; (iv) Minor survey exceptions, or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Company and the Restricted Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Company and the Restricted Subsidiaries; (v) Liens securing Debt of a Restricted Subsidiary to the Company or to another Restricted Subsidiary; (vi) Any other Liens (other than Liens described in clauses (i) - (xvi)) the amounts in respect of which in the aggregate do not exceed 10% of Consolidated Net Tangible Assets; (vii) Purchase Money Obligations; (viii) Liens on Acquired Financing Assets to secure Secured Subordinated Debt of the Company or the Restricted Subsidiaries arising in connection with the acquisition of such Acquired Financing Assets; (ix) Liens securing Non-Recourse Debt of the Company or the Restricted Subsidiaries; (x) Liens created or incurred after the date hereof upon any property (the "Substitute Property") concurrently with the release of a comparable Lien on other property (the "Released Property"), provided that (A) the fair market value of the Substitute Property shall not exceed the fair market value of the Released Property by more than 110%, (B) the character and use of the Substitute Property shall be substantially equivalent to the character and use of the Released Property, and (C) such substitution shall be without increase in the principal amount of the Debt remaining unpaid as of the date of such substitution which is to be secured by the Lien on such Substitute Property and such remaining unpaid principal amount of such Debt shall not exceed the aggregate fair market value of such Substitute Property and any other property securing such Debt; (xi) Liens on property of, or on any shares of stock or debt of, any corporation existing at the time such corporation becomes a Restricted Subsidiary; (xii) Liens on property, shares of stock, other equity interests, or debt existing at the time of acquisition or repossession thereof by the Company or any Restricted Subsidiary; (xiii) Liens on physical property (or any Accounts Receivable arising in connection with the lease thereof), shares of stock, other equity interests, 30 or debt acquired (or, in the case of physical property, constructed) after the date of this Indenture by the Company or any Restricted Subsidiary, which liens are created prior to, at the time of, or within one year after such acquisition (or, in the case of physical property, the completion of such construction or commencement of commercial operation of such property, whichever is later) to secure any debt issued, incurred, assumed or guaranteed prior to, at the time of, or within one year after such acquisition (or such completion or commencement, whichever is later) or to secure any other debt issued, incurred, assumed or guaranteed at any time thereafter for the purpose of refinancing all or any part of such debt; (xiv) Liens on Accounts Receivable of the Company or any Restricted Subsidiary arising from or in connection with transactions entered into by the Company or such Restricted Subsidiary after the date of this Indenture or on Accounts Receivable acquired by the Company or such Restricted Subsidiary after such date from others which liens are created prior to, at the time of, or after such Accounts Receivable arise or are acquired (i) as a result of any guarantee, repurchase or other contingent (direct or indirect) or recourse obligation of the Company or such Restricted Subsidiary in connection with the discounting, sale, assignment, transfer or other disposition of such Accounts Receivable or any interest therein, or (ii) to secure or provide for the payment of all or any part of the investment of the Company or such Restricted Subsidiary in any such Accounts Receivable (whether or not such Accounts Receivable are the Accounts Receivable on which such liens are created) or the purchase price thereof or to secure any debt (including, without limitation, Non-Recourse Debt) issued, incurred, assumed or guaranteed for the purpose of financing or refinancing all or any part of such investment or purchase price; (xv) any extension, renewal, or replacement of any Lien permitted by the preceding subsections (vi), (vii), (viii), (x), (xi), (xii), (xiii) and (xiv) hereof in respect of the same property theretofore subject to such Lien in connection with the extension, renewal or refinancing of the Debt secured thereby; provided that (A) such Lien shall attached solely to the same such property or Substitute Property, (B) such extension, renewal or refinancing of such Debt shall be without increase in the principal remaining unpaid as of the date of such extension, renewal or refinancing, and (C) the Debt secured by such Lien shall have been incurred within the limitations of this Indenture; and (xvi) any Lien approved by the Holders holding 66 2/3% or more in principal amount of the outstanding Securities of each Series. ; provided, however, that (i) any recourse provided by the Company or any Restricted Subsidiary in connection with any sale, transfer or other disposition by the Company or any Restricted Subsidiary of Accounts Receivable or of any Restricted Subsidiary substantially all the assets of which are Accounts Receivable which constitutes a "sale" under generally accepted accounting principles (as in effect at the time of such sale, transfer or other disposition) shall not, in any event, constitute a Lien and (ii) no Asset Drop Down (as defined in Section 5.01) shall, in any 31 event, constitute a Lien; and provided, further, that neither the satisfaction and discharge of any debt pursuant to Section 8.01 of this Indenture or pursuant to any similar provision in any other indenture or instrument governing any debt, nor the defeasance of any Debt pursuant to Section 8.02 of this Indenture or pursuant to any similar provision in any other indenture or instrument governing any Debt, shall be deemed the incurrence, issue, assumption or guarantee of Debt secured by a Lien for purposes of this Section 4.03(a). (b) The Company may omit in any particular instance to comply with any covenant or condition set forth in Section 4.03(a) with respect to the Securities of any Series if before or after the time for such compliance the Holders of a majority in aggregate principal amount of the Securities of such Series at the time outstanding shall, by action of such Securityholders in accordance with this Indenture, either waive such compliance in such instance or generally waive compliance with such covenant or conditions, but no such waiver shall extend to or affect (x) any other Series of Securities or (y) such covenant or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and duties of the Trustee in respect of any such covenant or condition shall remain in full force and effect. SECTION 4.04. Statement as to Compliance; Notice of Certain Events of Default. The Company will, and will cause the Guarantor to, within 120 days after the close of each fiscal year, commencing with the first fiscal year following the issuance of Securities of any Series under this Indenture, file with the Trustee a certificate of its principal executive officer, the principal financial officer or the principal accounting officer, covering the period from the date of issuance of such Securities to the end of the fiscal year in which such Securities were issued, in the case of the first such certificate, and covering the preceding fiscal year in the case of each subsequent certificate, and stating whether or not, to the knowledge of the signers, the Company has complied with all conditions and covenants on its part contained in this Indenture, and, if the signers have obtained knowledge of any default by the Company in the performance, observance or fulfillment of any such condition or covenant, specifying each such default and the nature thereof. For the purpose of this Section 4.04, compliance shall be determined without regard to any grace period or requirement of notice provided pursuant to the terms of this Indenture. SECTION 4.05. Payment of Additional Amounts. Where required by the terms of any Series of Securities, all payments made by the Company under or with respect to Securities of such Series (which Securities are hereafter referred to in this Section 4.05 as "Securities") will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge imposed or levied by or on behalf of the Government of Canada or of any province or territory thereof or by any authority or agency therein or thereof having power to tax (hereinafter "Taxes"), unless the Company is required to withhold or deduct 32 Taxes by law or by the interpretation or administration thereof. If the Company is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Securities, the Company will pay such additional amounts ("Additional Amounts") as may be necessary so that the net amount received by each holder of Securities (including Additional Amounts) after such withholding or deduction will not be less than the amount the holder of Securities would have received if such Taxes had not been withheld or deducted, provided that no Additional Amounts will be payable with respect to a payment made to a holder of Securities (an "Excluded Holder") (i) with which the Company does not deal at arm's length (within the meaning of the Income Tax Act (Canada)) at the time of making such payment, (ii) which is subject to such Taxes by reason of its being connected with Canada or any province or territory thereof otherwise than by the mere holding of Securities or the receipt of payments thereunder, or (iii) who could lawfully avoid (but has not so avoided) such deduction or withholding by complying or procuring that any third party complies with any statutory requirements or by making or procuring that any third party makes a declaration of non-residence or other similar claim for exemption to any relevant tax authority. The Company will also (i) make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish to the Trustee within 30 days after the date the payment of any Taxes is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Company. ARTICLE 5 CONSOLIDATION, MERGER, SALE OR CONVEYANCE. SECTION 5.01. Consolidation or Merger, etc., on Certain Terms. The Company covenants that it will not merge or consolidate with any other Person or sell or convey all, or substantially all of its assets to any Person (other than such a sale or conveyance to a Subsidiary of the Company or any successor thereto (such a sale or conveyance being called an "Asset Drop-Down")), unless (i) the Company shall be the continuing corporation or the successor Person or the Person which acquires by sale or conveyance substantially all the assets of the Company (if other than the Company) shall expressly assume the due and punctual payment of the principal of, premium, if any, and interest, if any, on all the Securities, according to their tenor and the due and punctual performance and observance of all of the covenants and conditions of this Indenture to be performed or observed by the Company by supplemental indenture or amendment, as applicable, in form satisfactory to the Trustee, executed and delivered to the Trustee by such Person, and (ii) the Company or such successor Person, as the case may be, shall not, immediately after such merger or consolidation, or such sale or conveyance, be in default in the performance of any such covenant or condition. In the event of any Asset Drop-Down after the date of this Indenture, any subsequent sale or conveyance of assets by a Subsidiary to which assets were transferred in such Asset Drop-Down (a "Drop-Down Subsidiary") will be deemed to be a sale or conveyance of assets by the Company for purposes of this Section 5.01. 33 SECTION 5.02. Successor Corporation Substituted. In case of any such consolidation, merger, sale or conveyance, and following such an assumption by the Successor, such Successor shall succeed to and be substituted for the Company with the same effect as if it had been named as such herein. With respect to any Successor to the Company, such Successor may cause to be signed, and may issue either in its own name or in the name of the Company prior to such succession any or all of the Securities issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon the order of such Successor instead of the Company and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver any Securities which previously shall have been signed and delivered by the officers of the Company to the Trustee for authentication, and any Securities which such Successor thereafter shall cause to be signed and delivered to the Trustee for that purpose. All of the Securities so issued shall in all respects have the same legal rank and benefit under this Indenture as the Securities theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Securities had been issued at the date of the execution hereof. In case of any such consolidation, merger, sale, lease or conveyance such changes in phraseology and form (but not in substance) may be made in the Securities thereafter to be issued as may be appropriate. In the event of any such sale or conveyance (other than a conveyance by way of lease) the Company or any Successor which shall theretofore have become such in the manner described in this Article shall be released and discharged from all obligations and covenants under this Indenture. SECTION 5.03. Opinion of Counsel to Trustee. The Trustee, subject to the provisions of Sections 7.01 and 7.02, may receive an Opinion of Counsel, prepared in accordance with Section 10.04, as conclusive evidence that any such consolidation, merger, sale, lease or conveyance, any such assumption, and any such release and discharge complies with the applicable provisions of this Indenture. ARTICLE 6 REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT. SECTION 6.01. Events of Default; Acceleration of Maturity; Waiver of Default. In case one or more of the following events shall have occurred and be continuing with respect to the Securities of any Series ("Events of Default"): 34 (a) default in the payment of any installment of interest upon any of the Securities of that Series as and when the same shall become due and payable, and continuance of such default for a period of 90 days; or (b) default in the payment of the principal of any of the Securities of that Series as and when the same shall become due and payable either at maturity, upon redemption, or otherwise (except as may be otherwise provided in the Board Resolution or supplemental indenture establishing the terms of the Securities of such Series); or (c) failure on the part of the Company duly to observe or perform any other of the covenants or agreements on the part of the Company in the Securities of that Series, in this Indenture contained or in any supplemental indenture under which the Securities of that Series have been issued, for a period of 90 days after the date on which written notice of such failure (specified as a "Notice of Default"), requiring the Company to remedy the same, shall have been given to the Company by the Trustee or to the Company and the Trustee by the Holders of at least twenty-five percent in aggregate principal amount of the Securities of that Series at the time outstanding; or (d) a court or governmental agency having jurisdiction in the premises shall enter a decree or order for relief in respect of the Company in an involuntary case under any applicable federal or state bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Company or for all or substantially all of its property or ordering the winding up or liquidation of its affairs, and such decree or order shall remain unstayed and in effect for a period of 90 consecutive days; or (e) the Company shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Company or for all or substantially all of its property or make any general assignment for the benefit of creditors; or the Company shall admit in writing its inability to pay its debts generally as they become due; or (f) any other Event of Default provided in the applicable resolution of the Board of Directors or in the supplemental indenture under which such Series of Securities is issued, as the case may be, as contemplated by Section 2.02; 35 then and in each and every such case, unless the principal of all the Securities of that Series shall have already become due and payable, either the Trustee or the Holders of not less than twenty-five percent in aggregate principal amount of the Securities of that Series then outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by Securityholders), may declare the principal (or, if the Securities of that Series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of that Series) of all the Securities of that Series to be due and payable immediately, and upon any such declaration the same (or, in the case of Original Issue Discount Securities, such specified amount) shall become and shall be immediately due and payable, anything in this Indenture, in any supplemental indenture under which the Securities of that Series have been issued or in the Securities of that Series contained to the contrary notwithstanding. This provision, however, is subject to the condition that if, at any time after the principal of the Securities of that Series (or, if the Securities of that Series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of that Series) shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the Company shall pay, or shall deposit with the Trustee a sum sufficient to pay, all matured installments of interest upon all the Securities of that Series and the principal of any and all Securities of that Series which shall have become due otherwise than by declaration, with interest upon such principal and (to the extent that payment of such interest is enforceable under applicable law) upon any overdue installments of interest at the same rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Securities of that Series, to the date of such payment or deposit, and such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents and counsel, and all other expenses and liabilities incurred, and all advances made, by the Trustee except as a result of its negligence or bad faith, and if any and all defaults under this Indenture with respect to the Securities of that Series, other than the nonpayment of the principal of and interest on the Securities of that Series which shall have become due by declaration, shall have been remedied -- then and in every such case the Holders of a majority in aggregate principal amount of the Securities of that Series then outstanding by written notice to the Company and to the Trustee may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission or annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon. For all purposes under this Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been accelerated and declared due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the principal thereof as shall be due and payable as a result of such acceleration, together with interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities. In case the Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned because of such waiver or 36 rescission or annulment or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Company, the Trustee and the Holders of the Securities shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Company, the Trustee and the Holders of the Securities shall continue as though no such proceedings had been taken. SECTION 6.02. Collection of Indebtedness by Trustee; Trustee May Prove Debt. The Company covenants that (1) in the case default shall be made in the payment of any installment of interest on any of the Securities of any Series, as and when the same shall become due and payable, and such default shall have continued for a period of 90 days, or (2) in case default shall be made in the payment of the principal of any of the Securities of any Series when the same shall have become due and payable, whether upon maturity or upon redemption or upon declaration or otherwise -- then, upon demand of the Trustee, the Company will pay to the Trustee, for the benefit of the Holders of the Securities of such Series, the whole amount that then shall have become due and payable on all Securities of such Series for principal (and premium, if any) and interest, with interest upon any overdue principal (and premium, if any) and (to the extent that payment of such interest is enforceable under applicable law) upon any overdue installments of interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Securities of such Series, and, in addition thereto, such further amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents and counsel, and all other amounts due the Trustee under Section 7.07. In case the Company shall fail forthwith to pay such amounts upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceedings to judgment or final decree and may enforce any such judgment or final decree against the Company or other obligor upon such Securities and collect in the manner provided by law out of the property of the Company or other obligor upon such Securities wherever situated the moneys adjudged or decreed to be payable. In case there shall be pending proceedings relative to the Company or any other obligor upon the Securities under Title 11 of the United States Code or any other applicable federal or state bankruptcy, insolvency or other similar law, or in case a receiver, assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator or similar official shall have been appointed for or taken possession of the Company or its property or such other obligor, or in case of any other judicial proceedings relative to the Company or other obligor upon the Securities of any Series, or to the creditors or property of the Company or such other obligor, the Trustee, irrespective of whether the principal of any Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section 6.02, shall be entitled and empowered, by intervention in such proceedings or otherwise, (a) to file and prove a claim or claims for the whole amount of principal (or, if the Securities of any Series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such Series), 37 premium, if any, and interest paid and unpaid in respect of the Securities of any Series and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for reasonable compensation to the Trustee, its agents and counsel, and for reimbursement of all amounts due the Trustee under Section 7.07) and of the Securityholders allowed in any judicial proceedings relative to the Company or other obligor upon the Securities of any Series, or to the creditors or property of the Company or such other obligor, (b) unless prohibited by applicable law and regulations, to vote on behalf of the Holders of the Securities of any Series in any election of a trustee or a standby trustee in arrangement, reorganization, liquidation or other bankruptcy or insolvency proceedings or person performing similar functions in comparable proceedings, and (c) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute all amounts received with respect to the claims of the Securityholders and of the Trustee on their behalf and any receiver, assignee, liquidator, custodian, trustee or other similar official is hereby authorized by each of the Securityholders to make payments to the Trustee and, in the event that the Trustee shall consent to the making of payments directly to the Securityholders, to pay the Trustee such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents and counsel, and all other amounts due the Trustee under Section 7.07. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or vote for or accept or adopt on behalf of any Securityholder any plan of reorganization, arrangement, adjustment or composition affecting the Securities of any Series or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Securityholder in any such proceeding except, as aforesaid, to vote for the election of a trustee in bankruptcy or similar Person. All rights of action and to assert claims under this Indenture, or under any of the Securities of any Series or coupons appertaining thereto, may be enforced by the Trustee without the possession of any of the Securities of such Series or of any coupons appertaining thereto or the production thereof in any trial or other proceedings relative thereto, and any recovery of judgment shall be for the ratable benefit of the holders of the Securities or coupons appertaining to such Securities in respect of which such action was taken. In any proceedings brought by the Trustee (and also any proceedings involving the interpretation of any provision of this Indenture to which the Trustee shall be a party) the Trustee shall be held to represent all the Holders of the Securities or coupons appertaining to such Securities in respect to which such action was taken, and it shall not be necessary to make any Holders of such Securities or coupons parties to any such proceedings. In the case of an Event of Default hereunder the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture, or in aid of the exercise of any power granted in this Indenture, or otherwise, and the Trustee may enforce any other legal or equitable right vested in the Trustee by this Indenture or by law. 38 SECTION 6.03. Application of Proceeds. Any moneys collected by the Trustee pursuant to Section 6.02 in respect of any Series shall be applied in the order following, at the date or dates fixed by the Trustee and in case of the distribution of such moneys on account of principal (or premium, if any) or interest, upon presentation (except in the case of Uncertificated Securities) of the several Securities and coupons, if any, appertaining to such Securities in respect of which moneys have been collected and stamping thereon the payment if only partially paid, and upon surrender thereof if fully paid: First: The Trustee for amounts due under Section 7.07; Second: In case the principal of the Securities of such Series in respect of which moneys have been collected shall not have become due, to the payment of interest on the Securities of such Series in default, in the order of the maturity of the installments of such interest, with interest (to the extent that such interest has been collected by the Trustee) upon the overdue installments of interest, at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Securities of such Series, such payments to be made ratably to the Persons entitled thereto; Third: In case the principal of the Securities of such Series in respect of which moneys have been collected shall have become due by declaration or otherwise, to the payment of the whole amount then owing and unpaid upon all of the Securities of such Series for principal (and premium, if any) and interest, with interest on the overdue principal (and premium, if any) , and (to the extent that such interest has been collected by the Trustee) upon overdue installments of interest, at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Securities of such Series, and in the case such moneys shall be insufficient to pay in full the whole amount so due and unpaid upon the Securities of such Series, then to the payment of such principal (and premium, if any) and interest or Yield to Maturity without preference or priority of principal (and premium, if any) over interest or Yield to Maturity, or of interest over any other installment of interest, or of any Security of such Series over any other Security of such Series, ratably to the aggregate of such principal (and premium, if any) and interest or Yield to Maturity; and Fourth: To the Company. SECTION 6.04. Limitation on Suits by Securityholders. No Holder of any Security of any Series or any coupon appertaining thereto shall have any right by virtue or by availing of any provision of this Indenture to institute any action or proceeding at law or in equity or in bankruptcy or otherwise upon or under or with respect to this Indenture, or for the appointment of a receiver, trustee, liquidator, custodian or other similar official or for any other remedy hereunder, unless such Holder previously shall have given to the Trustee written notice of an Event of Default and unless also the Holders of not less than twenty-five percent in aggregate principal amount of the Securities of such Series then 39 outstanding shall have made written request upon the Trustee to institute such action or proceedings in its own name as trustee hereunder and shall have offered to the Trustee such reasonable indemnity, as it may require against the costs, expenses, and liabilities to be incurred therein or thereby and the Trustee, for 60 days after its receipt of such notice, request and offer of indemnity, shall have failed to institute any such action or proceedings and no direction inconsistent with such written request shall have been given to the Trustee pursuant to Section 6.06; it being understood and intended and being expressly covenanted by the taker and Holder of every Security or coupon with every other taker and Holder and the Trustee that no one or more Holders of Securities of any Series or coupons appertaining thereto shall have any right in any manner whatever by virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of any other Holder of Securities or coupons of such Series, or to obtain or seek to obtain priority over or preference to any other such Holder, or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders of Securities of the applicable Series and coupons, if any, appertaining thereto. For the protection and enforcement of the provisions of this Section 6.04, each and every Securityholder and the Trustee shall be entitled to such relief as can be given either at law or in equity. Notwithstanding any other provision in this Indenture or any provision of any Security, the right of any Holder of any Security to receive payment of the principal of, premium, if any and interest on such Security, on or after the respective due dates expressed in such Security, or any redemption date, and the right of any Holder of a coupon to receive payment of interest due as provided in such coupon, or to institute suit for the enforcement of any such payment on or after such respective due dates or redemption dates, shall not be impaired or affected without the consent of such Holder. SECTION 6.05. Powers and Remedies Cumulative; Delay or Omission, Not Waiver of Default. All powers and remedies given by this Article Six to the Trustee or to the Securityholders or the Holders of any coupons shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of any other powers and remedies available to the Trustee or the Securityholders or the Holders of any coupons, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture, and no delay or omission of the Trustee or of any Holder of the Securities or coupons in exercising any right or power accruing upon any Event of Default occurring and continuing as aforesaid shall impair any such right or power or shall be construed to be a waiver of any such default or an acquiescence therein; and, subject to the provisions of Section 6.04, every power and remedy given by this Article 6 or by law to the Trustee or to the Securityholders or the Holders of any coupons may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Securityholders or the Holders of any coupons. 40 SECTION 6.06. Control by Securityholders; Waiver of Defaults. The Holders of a majority in aggregate principal amount of the Securities of each Series affected (with each Series voting as a separate class) at the time outstanding shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee with respect to the Securities of such Series by this Indenture; provided that such direction shall not be otherwise than in accordance with law and the provisions of this Indenture and provided further that (subject to the provisions of Section 7.01) the Trustee shall have the right to decline to follow any such direction if the Trustee, being advised by counsel, shall determine that the action or proceeding so directed may not lawfully be taken or if the Trustee in good faith by its board of directors, the executive committee, or a trust committee of directors or Responsible Officers of the Trustee shall determine that the action or proceedings so directed would involve the Trustee in personal liability or if the Trustee in good faith shall so determine that the actions or forbearances specified in or pursuant to such direction would be unduly prejudicial to the interests of Holders of the Securities of all Series so affected not joining in the giving of said direction, it being understood that (subject to Section 7.01) the Trustee shall have no duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders. Nothing in this Indenture shall impair the right of the Trustee in its discretion to take any action deemed proper by the Trustee and which is not inconsistent with such direction or directions by Securityholders. Prior to the declaration of the maturity of the Securities of any Series as provided in Section 6.01, the Holders of a majority in aggregate principal amount of the Securities of such Series at the time outstanding may on behalf of the Holders of all the Securities of such Series waive any past default hereunder with respect to such Series and its consequences, except a default in the payment of the principal of or interest on any of the Securities of such Series. In the case of any such waiver, the Company, the Trustee and the holders of the Securities of such Series shall be restored to their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon. SECTION 6.07. Right of Court to Require Filing of Undertaking to Pay Costs. All parties to this Indenture agree, and each Holder of any Security or coupon appertaining thereto, by such Holder's acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section 6.07 shall not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder, or group of Securityholders of any Series, holding in the aggregate more than ten percent in principal amount of the Securities of such Series outstanding, or to any suit instituted by any 41 Securityholder for the enforcement of the payment of the principal of (or premium, if any) or interest on any Security on or after the due date expressed in such Security. ARTICLE 7 TRUSTEE. SECTION 7.01. Duties of Trustee. (a) If an Event of Default has occurred and is continuing, the Trustee shall exercise its rights and powers under this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. (b) Except during the continuance of an Event of Default: (1) The Trustee need perform only those duties that are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Trustee. (2) In the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture. (c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that (1) This paragraph does not limit the effect of paragraph (b) of this Section. (2) The Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts. (3) The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.06. (d) Every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of this Section. (e) The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any loss, liability or expense. 42 (f) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law. SECTION 7.02. Rights of Trustee. (a) The Trustee may rely on any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document. (b) Before the Trustee acts or refrains from acting, it may consult with counsel or require an Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on a Board Resolution, the written advice of counsel reasonably acceptable to the Trustee, a certificate of an Officer or Officers delivered pursuant to Section 2.02(b), an Officers' Certificate or an Opinion of Counsel. (c) The Trustee may act through agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care. (d) The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers. (e) Unless otherwise specifically provided, any demand, request, direction or notice from the Company shall be sufficient if signed by an Officer of the Company. (f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction. (g) The Trustee shall not be charged with knowledge of any Default or Event of Default with respect to the Securities unless either (1) a Responsible Officer of the Trustee assigned to the Corporate Trust Department of the Trustee (or any successor division or department of the Trustee) shall have actual knowledge of such Default or Event of Default or (2) written notice of such Default or Event of Default shall have been given to the Trustee by the Company or by any Holder of the Securities. 43 SECTION 7.03. Individual Rights of Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Company or an Affiliate with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights. However, the Trustee is subject to Sections 7.10 and 7.11. SECTION 7.04. Trustee Disclaimer. The Trustee makes no representation as to the validity or adequacy of this Indenture, the Securities or the Guarantee. It shall not be accountable for the Company's use of the proceeds from the Securities or for moneys paid over to the Company pursuant to this Indenture, and it shall not be responsible for any statement in the Securities other than its certificate of authentication. SECTION 7.05. Notice of Default. If a Default occurs and is continuing with respect to the Securities of any Series and it is known to the Trustee, the Trustee shall mail to each Holder of a Security of that Series entitled to receive reports pursuant to Section 4.02(c) (and, if Unregistered Securities of that Series are outstanding, shall cause to be published at least once in an Authorized Newspaper in The City of New York, and if such Securities are listed on the London Stock Exchange, London, and, if such Securities are listed on The Luxembourg Stock Exchange, Luxembourg) notice of the Default within 90 days after it occurs. Except in the case of a Default in payment on the Securities of any Series, the Trustee may withhold the notice if and so long as its Corporate Trust Committee or a committee of its Responsible Officers in good faith determines that withholding such notice is in the interests of Securityholders of that Series. SECTION 7.06. Reports by Trustee to Holders. (a) Within 60 days after each May 15, beginning with May 15, 1999, the Trustee shall mail to each Securityholder, if any, entitled to receive reports pursuant to Section 4.02(c) a brief report dated as of such date that complies with TIA 'SS' 313(a) (but if no event described in TIA 'SS' 313(a) has occurred within the twelve months preceding such date, no report need be transmitted). Commencing at such time, the Trustee also shall comply with TIA 'SS'313(b). (b) At the time that it mails such a report to Securityholders, the Trustee shall file a copy of that report with the SEC and with each stock exchange on which the Securities are listed. The Company shall provide written notice to the Trustee when the Securities of any Series are listed on any stock exchange. 44 SECTION 7.07. Compensation and Indemnity. (a) The Company shall pay to the Trustee from time to time reasonable compensation for its services. The Trustee's compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred by it in connection with the performance of its duties under this Indenture. Such expenses shall include the reasonable compensation and expenses of the Trustee's agents and counsel. (b) The Company shall indemnify the Trustee against any loss or liability incurred by it arising out of or in connection with its acceptance or administration of the trust or trusts hereunder. The Trustee shall notify the Company promptly of any claim for which it may seek indemnity. The Company shall defend the claim and the Trustee shall cooperate in the defense. The Trustee may have separate counsel and the Company shall pay the reasonable fees and expenses of such counsel. The Company need not pay for any settlement made without its consent. (c) The Company need not reimburse any expense or indemnify against any loss or liability incurred by the Trustee through negligence or bad faith. (d) To secure the payment obligations of the Company pursuant to this Section, the Trustee shall have a lien prior to the Securities of any Series on all money or property held or collected by the Trustee, except that held in trust to pay principal and interest on particular Securities of a Series. (e) If the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(d) or (e) occurs, such expenses and the compensation for such services are intended to constitute expenses of administration under any state or federal bankruptcy, insolvency or related law. (f) The obligations of the Company under the Section 7.07 shall survive the resignation or removal of the Trustee or the defeasance or other termination of this Indenture. SECTION 7.08. Replacement of Trustee. (a) The resignation or removal of the Trustee and the appointment of a successor Trustee shall become effective only upon the successor Trustee's acceptance of appointment as provided in this Section. (b) The Trustee may resign with respect to the Securities of any Series by so notifying the Company. The Holders of a majority in principal amount of the Securities of any Series may remove the Trustee with respect to that Series by so notifying the Trustee and the Company and may appoint a successor Trustee for such Series with the Company's consent. The Company may remove the Trustee with respect to Securities of any Series if: 45 (1) the Trustee fails to comply with Section 7.10; (2) the Trustee is adjudged a bankrupt or an insolvent; (3) a receiver or public officer takes charge of the Trustee or its property or; (4) the Trustee becomes incapable of acting. (c) If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, with respect to Securities of any Series, the Company shall promptly appoint a successor Trustee for such Series. (d) If a successor Trustee with respect to the Securities of any Series does not take office within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of a majority in principal amount of the Securities of the applicable Series may petition any court of competent jurisdiction for the appointment of a successor Trustee. (e) If the Trustee with respect to the Securities of any Series fails to comply with Section 7.10, after request therefor by any Securityholder of the applicable Series who has been a bona fide Holder of a Security of such Series for at least six months, then such Holder may petition any court of competent jurisdiction for the removal of such Trustee and the appointment of a successor Trustee. (f) A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon, the resignation or removal of the retiring Trustee for any Series of Securities shall become effective, and the successor Trustee shall have all the rights, powers and duties of the retiring Trustee with respect to all Series of Securities for which the successor Trustee is to be acting as Trustee under this Indenture. The retiring Trustee shall promptly transfer all property held by it as Trustee with respect to such Series of Securities to the successor Trustee subject to the lien provided for in Section 7.07. The Company shall give notice of each appointment of a successor Trustee for any Series of Securities by publishing notice of such event once in an Authorized Newspaper in The City of New York, and if Securities of that Series are listed on the London Stock Exchange, London, and if Securities of that Series are listed on the Luxembourg Stock Exchange, Luxembourg, and by mailing written notice of such event by first-class mail to the Holders of Securities of such Series entitled to receive reports pursuant to Section 4.02(c). (g) All provisions of this Section 7.08 except subparagraphs (b)(1) and (e) and the words "subject to the lien provided for in Section 7.07" in subparagraph (f) shall apply also to any Paying Agent located outside the U.S. and its possessions as required by Section 2.04. (h) In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) Series, the Company, the retiring Trustee and such 46 successor Trustee shall execute and deliver a supplemental indenture wherein such successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, such successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those Series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to the Securities of a Series, shall contain such provisions as shall be deemed necessary ro desirable to confirm that the trusteeship for Securities of that or those Series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees as co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee. SECTION 7.09. Successor Trustee, Agents by Merger, etc. If the Trustee or any Agent consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business assets to, another corporation, the successor corporation, without any further act, shall be the successor Trustee or Agent, as the case may be. SECTION 7.10. Eligibility; Disqualification. This Indenture shall always have a Trustee with respect to each Series of Securities who satisfies the requirement of TIA 'SS' 310(a)(1) and (5). The Trustee shall always have a combined capital and surplus of at least $100,000,000 as set forth in its most recent published annual report of condition. The Trustee is subject to TIA 'SS' 310(b) during the period of time required thereby, except that there shall be excluded from the operation of TIA 'SS' 310(b)(1) all indentures of the Company now or hereafter existing which may be excluded under the proviso of TIA 'SS' 310(b)(1) including the Indenture dated as of April 9, 1990, as amended between the Company and The Chase Manhattan Bank (formerly known as Chemical Bank), as Trustee, and the Indenture dated as of June 1, 1992, as amended between the Company and The Chase Manhattan Bank (formerly known as Chemical Bank), as Trustee and the Indenture dated as of July 1, 1993, as amended, between the Company and The Chase Manhattan Bank (formerly known as Chemical Bank). Nothing herein shall prevent the Trustee from filing with the SEC the application referred to in the penultimate paragraph of TIA 'SS' 310(b). SECTION 7.11. Preferential Collection of Claims Against Company. The Trustee is subject to TIA 'SS' 311(a), excluding any creditor relationship listed in TIA 'SS' 311(b). A Trustee who has resigned or been removed shall be subject to TIA 'SS' 311(a) to the extent indicated. 47 SECTION 7.12. Authenticating Agent. The Trustee may appoint an authenticating agent or agents acceptable to the Company and the Trustee with respect to the Securities of one or more Series which shall be authorized to act on behalf of the Trustee to Authenticate Certificated and Uncertificated Securities of such Series issued upon original issue, exchange, registration of transfer, partial redemption, conversion or payment or substitution of Securities pursuant to any provision contained in this Indenture. Securities so Authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if Authenticated by the Trustee hereunder and every reference herein to the Authentication and delivery of Securities by the Trustee or the Trustee's certificate of Authentication on Certificated Securities or the issuance of Statements of Account by the Trustee shall be deemed to include Authentication and delivery on behalf of the Trustee by an authenticating agent and a certificate of Authentication on Certificated Securities executed on behalf of the Trustee by an authenticating agent and the issuance of Statements of Account on behalf of the Trustee by an authenticating agent. Each authenticating agent shall at all times be a corporation organized and doing business under the laws of the United States of America or any state thereof or the District of Columbia and authorized under such laws to act as an authenticating agent. Any corporation into which an authenticating agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such authenticating agent shall be a party, or any corporation succeeding to the corporate agency or all or substantially all of the business of an authenticating agent, shall continue to be an authenticating agent, provided that such corporation shall be otherwise eligible under this Section 7.12, without the execution or filing of any paper or any further act on the part of the Trustee or the authenticating agent. An authenticating agent may resign at any time by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an authenticating agent by giving written notice hereof to such authenticating agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such authenticating agent shall cease to be eligible in accordance with the provisions of this Section 7.12, the Trustee may appoint a successor authenticating agent which shall be acceptable to the Company. Any successor authenticating agent upon acceptance of its appointment hereunder shall become vested with all rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an authenticating agent. No successor authenticating agent shall be appointed unless eligible under the provisions of this Section 7.12. The Company agrees to pay to each authenticating agent from time to time reasonable compensation for its services under this Section 7.12. The Trustee shall not incur any liability for the appointment by the Trustee of any authenticating agent or for any misconduct or negligence of any such authenticating agent, including without limitation, its authentication of Securities upon original issuance or otherwise. 48 If the Trustee does incur liability for any such misconduct or negligence of any such authenticating agent, the Company agrees to indemnify the Trustee for, and hold it harmless against, any such liability, including the costs and expenses of defending itself against any liability in connection with such misconduct or negligence of such authenticating agent. 49 If an authenticating agent is appointed with respect to the Securities of one or more Series pursuant to this Section 7.12, the Certificated Securities of such Series may have endorsed thereon, in addition to or in lieu of the Trustee's certificate of Authentication, an alternate certificate of Authentication in the following form: "This is one of the Certificated Securities of the Series designated therein referred to in the within-mentioned Indenture. The Chase Manhattan Bank, as Trustee By _______________________________________ As Authenticating Agent By _______________________________________ Authorized Officer" ARTICLE 8 SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE; UNCLAIMED MONIES. SECTION 8.01. Satisfaction and Discharge of Indenture. If at any time (a) the Company shall have delivered to the Trustee canceled or for cancellation all Securities of any Series theretofore Authenticated and all unmatured coupons, if any, appertaining thereto (other than any Securities of such Series and coupons appertaining thereto which shall have been destroyed, lost or stolen and which shall have been replaced or paid as provided in Section 2.09), or (b) in the case of any Series of Securities where the exact amount (including currency of payment) of principal of and interest due on which can be determined at the time of making the deposit referred to in clause (ii) below, (i) all the Securities of such Series and all unmatured coupons appertaining thereto, not theretofore delivered to the Trustee canceled or for cancellation shall have become due and payable, or are by their terms to become due and payable within one year or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and (ii) the Company shall deposit or cause to be deposited with the Trustee as trust funds the entire amount in cash sufficient to pay at maturity or upon redemption all such Securities not theretofore delivered to the Trustee canceled or for cancellation, including principal (and premium, if any) and interest due or to become due to such date of maturity or date fixed for redemption, as the case may be, or (c) in the case of any Series of Securities which have a floating or variable rate of interest that cannot exceed a specified or determinable maximum rate of interest, (i) all the Securities of such Series and all unmatured coupons appertaining thereto, not theretofore 50 delivered to the Trustee canceled or for cancellation shall have become due and payable, or are by their terms to become due and payable within one year or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and (ii) the Company shall deposit or cause to be deposited with the Trustee as trust funds the entire amount in cash sufficient to pay each installment of interest on such Series of Securities not theretofore delivered to the Trustee for cancellation at the applicable specified or determined maximum rate of interest thereon on the dates such installments of interest are due and sufficient to pay the principal of (and premium, if any, on) the Securities of such Series not theretofore delivered to the Trustee for cancellation at maturity or upon redemption, but excluding, however, in each of the foregoing cases, the amount of any moneys for the payment of principal of (and premium, if any) or interest on the Securities (1) theretofore deposited with the Trustee and repaid by the Trustee to the Company in accordance with the provisions of Section 8.05, or (2) paid to any state or to the District of Columbia pursuant to its unclaimed property or similar laws, and if in either case the Company shall also pay or cause to be paid all other sums payable hereunder by the Company, then this Indenture shall cease to be of further effect with respect to the Securities of such Series (except as to the provisions applicable to transfers and exchanges of Securities of such Series and any coupons appertaining thereto) and the Trustee on demand of and at the cost and expense of the Company, shall execute proper instruments acknowledging satisfaction of and discharging this Indenture with respect to the Securities of such Series. The Company agrees to reimburse the Trustee for any costs or expenses thereafter reasonably and properly incurred by the Trustee in connection with this Indenture or the Securities. SECTION 8.02. Defeasance upon Deposit of Moneys or U.S. Government Obligations. In the case of any Series of Securities, the exact amounts (including the currency of payment) of principal of and interest due on which can be determined at the time of making the deposit referred to in clause (1) below, at the Company's option, either (i) the Company shall be deemed to have been Discharged (as defined below) from its obligations with respect to the Securities of such Series and coupons, if any, appertaining thereto or (ii) the Company shall cease to be under any obligation to comply with any term, provision or condition set forth in Sections 4.03 and 5.01 with respect to the Securities of such Series at any time after the applicable conditions set forth below have been satisfied: (1) the Company shall have deposited or caused to be deposited irrevocably with the Trustee as trust funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Securities of such Series and coupons appertaining thereto (i) money in an amount, or (ii) in the case of any Series of Securities the payments on which may only be made in U.S. dollars, U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or (iii) a combination of (i) and (ii), sufficient in each case in the opinion of a nationally recognized firm of 51 independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge each installment of principal of, and interest on, the outstanding Securities of such Series and coupons appertaining thereto on the dates such installments of interest or principal are due; (2) if the Securities of such Series are then listed on the New York Stock Exchange, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Company's exercise of its option under this paragraph would not cause such Securities to be delisted; (3) no Event of Default or event (including such deposit) which with notice or lapse of time would become an Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date of such deposit and no Event of Default under Section 6.01(d) or (e) shall have occurred by the 91st day after such deposit in connection with a deposit under Clause (1) of this Section 8.02 to Discharge the Company from its obligations with respect to the Securities of such Series; (4) the Company shall have delivered to the Trustee an opinion of independent counsel satisfactory to the Trustee to the effect that Holders of the Securities of such Series and coupons appertaining thereto will not recognize income, gain or loss for Federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 and will be subject to Federal income tax on the same amount and in the same manner and at the same time as would have been the case if such option had not been exercised, which opinion may, but is not required to, include or be based upon a ruling to that effect received from or published by the Internal Revenue Service; and (5) The Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 have been complied with. "Discharged" means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by, and obligations under, the Securities of such Series and coupons appertaining thereto and the Guarantee relating thereto and to have satisfied all the obligations under this Indenture relating to the Securities of such Series and coupons appertaining thereto (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), except (A) the rights of Holders of the Securities of such Series and coupons appertaining thereto to receive, from the trust fund described in clause (1) above, payment of the principal of and the interest on such Securities of such Series and coupons when such payments are due; (B) the Company's obligations with respect to such Securities of 52 such Series under Sections 2.04, 2.08, 2.09, 2.11 and 8.03; and (C) the rights, powers, trusts, duties and immunities of the Trustee hereunder. This Indenture may be Discharged pursuant to this Section 8.02 with respect to Securities of a Series which have a floating or variable rate of interest that cannot exceed a specified or determinable maximum rate of interest by deposit, in accordance with clause (1) of this Section 8.02, with respect to the interest payments required to be made on the outstanding Securities of such Series of money and/or U.S. Government Obligations sufficient (determined in accordance with clause (1) of this Section 8.02) to pay and discharge each installment of interest on the outstanding Securities of such Series at the applicable specified or determined maximum rate of interest thereon on the dates such installments of interest are due and the satisfaction of all other requirements of this Section 8.02. SECTION 8.03. Application of Moneys Deposited. All moneys deposited with the Trustee pursuant to Section 8.01 or 8.02 shall be held in trust and applied by it to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent), to the Holders of the particular Securities of such Series and of coupons appertaining thereto for the payment or redemption of which such moneys have been deposited with the Trustee, of all sums due, and to become due thereon for principal and interest. SECTION 8.04. Repayment of Moneys Held. In connection with the satisfaction and discharge of this Indenture with respect to the Securities of any Series, all moneys then held by any Paying Agent under the provisions of this Indenture with respect to such Series of Securities shall, upon demand of the Company, be repaid to it or paid to the Trustee and thereupon such Paying Agent shall be released from all further liability with respect to such moneys. SECTION 8.05. Return of Moneys Unclaimed for Two Years; Return of Additional Moneys and U.S. Government Obligations. (a) Any moneys deposited with or paid to the Trustee or any Paying Agent pursuant to any provision of this Indenture for payment of the principal of (and premium, if any) or interest on the Securities of any Series and any coupon appertaining thereto and not applied but remaining unclaimed for two years after the date upon which the principal of (and premium, if any) or interest on such Securities or coupons, as the case may be, shall have become due and payable, shall be repaid to the Company by the Trustee or such Paying Agent on demand; and the Holder of any of the Securities of such Series or coupons appertaining thereto shall thereafter look only to the Company for any payment which such Holder may be entitled to collect and all liability of the Trustee or any Paying Agent with respect to such moneys shall thereupon cease; 53 provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment with respect to moneys deposited with it for any payment (a) in respect of Registered Securities of any Series, shall at the expense of the Company, mail by first-class mail to Holders of such Securities at their addresses as they shall appear on the Security register, and (b) in respect of Unregistered Securities of any Series, shall at the expense of the Company cause to be published once, in an Authorized Newspaper in the Borough of Manhattan, The City of New York, and if the Securities of such Series are listed on the London Stock Exchange, once in an Authorized Newspaper in London, and if the Securities of such Series are listed on the Luxembourg Stock Exchange, once in an Authorized Newspaper in Luxembourg, notice, that such moneys remain and that, after a date specified therein, which shall not be less than thirty days from the date of such mailing or publication, any unclaimed balance of such money then remaining will be repaid to the Company. (b) Any moneys or U.S. Government Obligations remaining on deposit with the Trustee pursuant to Section 8.01 or 8.02 with respect to Securities of a Series (including Securities of a Series which have a floating or variable rate of interest that cannot exceed a specified or determinable maximum rate of interest) shall, after payment of all amounts of principal of and interest on and other amounts due with respect to the outstanding Securities of such Series, be promptly remitted by the Trustee to the Company. SECTION 8.06. Indemnity for Government Obligations. The Company shall pay and shall indemnify the Trustee and each Securityholder of each Series in respect of which the deposit shall have been made against any tax, fee or other charge imposed on or assessed against deposited U.S. Government Obligations or the principal and interest received on such obligations. ARTICLE 9 AMENDMENTS AND WAIVERS. SECTION 9.01. Without Consent of Holders. The Company and the Trustee may enter into one or more supplemental indentures without consent of any Securityholder for any of the following purposes: (1) to cure any ambiguity, defect or inconsistency herein or in the Securities of any Series or to make any other change, provided no such action shall adversely affect the rights of any Securityholder; or (2) to comply with Article 5; or (3) to secure the Securities pursuant to Section 4.03; or 54 (4) to provide for Uncertificated Securities in addition to or in place of Certificated Securities; or (5) to provide for the issuance of and establish the form and terms and conditions of Securities of any Series as provided in Section 2.02, to establish the form of any certifications required to be furnished pursuant to the terms of this Indenture or any Series of Securities, or to add to the rights of the Holders of any Series of Securities, or to surrender any right or power conferred on the Company. SECTION 9.02. With Consent of Holders. (a) With the written consent of the Holders of a majority in principal amount of the outstanding Securities of each Series affected by such supplemental indenture (with each Series voting as a class), the Company and the Trustee may enter into a supplemental indenture to add any provisions to or to change or eliminate any provisions of this Indenture or of any supplemental indenture or the Guarantee or to modify, in each case in any manner not covered by Section 9.01, the rights of the Securityholders of each such Series. The Holders of a majority in principal amount of the outstanding Securities of each Series affected by such waiver (with each Series voting as a class), by notice to the Trustee, may waive compliance by the Company with any provision of this Indenture, any supplemental indenture, the Guarantee or the Securities of any such Series; but no such waiver shall extend to or affect (x) any other Series or Securities or (y) such provision except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and duties of the Trustee in respect to any such provision shall remain in full force and effect, provided, however, without the consent of each Securityholder affected, an amendment or waiver may not: (1) reduce the amount of Securities whose Holders must consent to an amendment or waiver; (2) change the rate of or change the time for payment of interest on any Security; (3) change the principal of or change the fixed maturity of any Security; (4) waive a Default in the payment of the principal of or interest on any Security; (5) make any Security payable in money other than that stated in the Security; or (6) make any changes in Sections 6.04 (last paragraph), 6.06 (third sentence), or the proviso in the last sentence of Section 9.02(a). 55 (b) It is not necessary under this Section 9.02 for the Securityholders to consent to the particular form of any proposed supplemental indenture, but it is sufficient if they consent to the substance thereof. (c) Promptly after the execution by the Company and the Trustee of any supplemental indenture pursuant to the provisions of this Section 9.02, the Company shall transmit by mail a notice, setting forth in general terms the substance of such supplemental indenture, to all Holders of Registered Securities, as the names and addresses of such Holders appear on the register for each Series of Securities, and to such Holders of Unregistered Securities that are entitled to receive reports pursuant to Section 4.02(c). Any failure of the Company to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture. SECTION 9.03. Compliance with Trust Indenture Act. Every amendment to this Indenture or the Securities of one or more Series shall be set forth in a supplemental indenture that complies with the TIA as then in effect. SECTION 9.04. Revocation and Effect of Consents. Until an amendment, direction or waiver becomes effective, a consent to it by a Holder of a Security is a continuing consent by the Holder and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder's Security, even if notation of the consent is not made on any Security. However, any such Holder (or, if no record date has been established for the solicitation of consents, any subsequent Holder) may revoke the consent as to his Security or portion of a Security if the Trustee receives the notice of revocation before the date the amendment, direction or waiver becomes effective. After an amendment or waiver becomes effective, it shall bind ever Securityholder of each Series affected by such amendment or waiver. SECTION 9.05. Notation on or Exchange of Securities. The Trustee may, at the direction of the Company, place an appropriate notation about an amendment or waiver on any Security of any Series thereafter Authenticated. The Company in exchange for Securities of that Series may issue and the Trustee shall authenticate new Securities of that Series that reflect the amendment or waiver. SECTION 9.06. Trustee Protected. The Trustee need not sign any supplemental indenture that adversely affects its rights, duties, obligations and standard of care hereunder. In signing such supplemental 56 indenture, the Trustee shall be entitled to receive and, subject to Section 7.01, shall be fully protected in relying upon, an Officers' Certificate and an Opinion of Counsel as conclusive evidence that such supplemental indenture is authorized or permitted by this Indenture, that is not inconsistent herewith, and that it will be a valid and binding obligation upon the Company in accordance with its terms. ARTICLE 10 MISCELLANEOUS. SECTION 10.01. Trust Indenture Act Controls. If and to the extent that any provision of this Indenture limits, qualifies or conflicts with the duties imposed by, or with another provision (an "incorporated provision") included in this Indenture by operation of, Sections 310 to 318, inclusive of the Trust Indenture Act of 1939, such imposed duties or incorporated provision shall control. SECTION 10.02. Notices. (a) Unless otherwise herein provided, any notice or communication by the Company or the Trustee to any of the other is duly given if in writing and delivered in person or mailed by first-class mail: if to the Company to : Newcourt Credit Group Inc. BCE Place, 181 Bay Street Suite 3500 P.O. Box 827 Toronto, Ontario Canada M5J2T3 Attention: Treasurer if to the Trustee to: The Chase Manhattan Bank 450 West 33rd Street New York, NY 10001 Attention: Corporate Trustee Administration Department (b) The Company or the Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications. 57 (c) Any notice or communication to Holders of Securities entitled to received reports pursuant to Section 4.02(c) shall be mailed by first-class mail to the addresses for Holders of Registered Securities shown on the register kept by the Registrar and to addresses filed with the Trustee for other Holders. Failure to so mail a notice or communication or any defect in such notice or communication shall not affect its sufficiency with respect to other Holders of Securities of that or any other Series entitled to receive notice. (d) If a notice or communication is mailed in the manner provided above within the time prescribed, it is conclusively presumed to have been duly given, whether or not the addressee receives it. (e) If the Company mails a notice or communication to Securityholders, it shall mail a copy to the Trustee and to each Agent at the same time. (f) If it shall be impractical in the opinion of the Trustee or the Company to make any publication of any notice required hereby in an Authorized Newspaper, any publication or other notice in lieu thereof which is made or given with the approval of the Trustee shall constitute a sufficient publication of such notice. (g) In case, by reason of the suspension of regular mail service, or by reason of any other cause, it shall be impossible to mail any notice as required by this Indenture, then such method of notification as shall be made with the approval of the Trustee shall constitute a sufficient mailing of such notice. SECTION 10.03. Communication by Holders with Other Holders. Securityholders of any Series may communicate pursuant to TIA 'SS' 312(b) with other Securityholders of that Series or of all Series with respect to their rights under this Indenture or under the Securities of that Series or of all Series. The Company, the Trustee, the Registrar and anyone else shall have the protection of TIA 'SS' 312(c). SECTION 10.04. Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee: (1) an Officers' Certificate stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and (2) an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with. 58 SECTION 10.05. Statements Required in Certificate or Opinion. Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than statements delivered pursuant to Section 4.04) shall include: (1) a statement that the person making such certificate or opinion has read such covenant or condition; (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (3) a statement that, in the opinion of such person he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and (4) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with. SECTION 10.06. Legal Holidays. A "Legal Holiday" is a Saturday, a Sunday, or a day on which banking institutions in the City of New York are not required to be open. SECTION 10.07. Governing Law. This Indenture, each Security and any coupons shall be deemed to be a contract made under the laws of the State of New York, and for all purposes shall be construed in accordance with the laws of said State. SECTION 10.08. No Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret another indenture, loan or debt agreement of the Company, the Guarantor or an Affiliate. No such indenture, loan or debt agreement may be used to interpret this Indenture. 59 SECTION 10.09. No Recourse Against Others. No director, officer, employee or stockholder, as such, of the Company or the Guarantor shall have any liability for any obligations of the Company or the Guarantor under the Securities, the Indenture or the Guarantee or for any claim based on, in respect of or by reason of such obligations or their creation. Each Securityholder by accepting a Security waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Securities. SECTION 10.10. When Treasury Securities Disregarded. In determining whether the Holders of the required principal amount of Securities have concurred in any direction, waiver or consent, Securities owned by the Company or any Affiliate of the Company shall be disregarded, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Securities which the Trustee knows are so owned shall be so disregarded. Securities so owned which have been pledged in good faith shall not be disregarded if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to the Securities and that the pledgee is not the Company or an Affiliate of the Company. SECTION 10.11. Rules by Trustee, Paying Agent, Registrar, Record Dates. The Trustee may make reasonable rules for action by or a meeting of Securityholders. The Paying Agent or Registrar may make reasonable rules for its functions. The Company may set a record date for purposes of determining the identity of Holders entitled to vote or consent to any action by vote or consent authorized or permitted under this Indenture, which record date, in the case of a consent or vote pursuant to Section 6.06, shall be the later of 10 days prior to the first solicitation of such consent or the date of the most recent list of Holders furnished to the Trustee pursuant to Section 2.07 of this Indenture prior to such solicitation. If a record date is fixed, those Persons who were Holders of Securities at such record date (or their duly designated proxies), and only those Persons, shall be entitled to take such action by vote or consent or to revoke any vote or consent previously given, whether or not such Persons continue to be Holders after such record date. No such vote or consent shall be valid or effective for more than 120 days after such record date. SECTION 10.12. Execution in Counterparts. This Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one instrument. 60 SECTION 10.13. Securities in a Foreign Currency. Unless otherwise specified in a Company Order delivered pursuant to Section 2.03(d) of this Indenture with respect to a Series of Securities, whenever for purposes of this Indenture any action may be taken by the Holders of a specified percentage in aggregate principal amount of Securities of all Series or all Series affected at the time outstanding and, at such time, there are outstanding Securities of any Series which are denominated in a coin or currency other than United States dollars, then the principal amount of Securities of such Series which shall be deemed to be outstanding for the purpose of taking such action shall be that amount of United States dollars that could be obtained for such amount at the Market Exchange Rate, as such rate shall be certified to the Trustee by an Officers' Certificate. For purposes of this Section 10.13, Market Exchange Rate shall mean the noon United States dollar buying rate for that currently for cable transfers quoted in New York City as certified for customs purposes by the Federal Reserve Bank of New York; provided, however, in the case of Euros, Market Exchange Rate shall mean the rate of exchange determined by the Commission of the European Communities (or any successor thereof) as published in the Official Journal of the European Communities (such publication or any successor publication, the "Journal"). If such Market Exchange Rate is not available for any reason with respect to such currency, the Company shall use, in its sole discretion and without liability on its part, (i) such quotation of the Federal Reserve Bank of New York, or, in the case of Euros, the rate of exchange as published in the Journal, as the most recent available date or (ii) quotations or, in the case of Euros, rates of exchange from one or more major banks in New York City or in the country of issue of the currency in question, which for purposes of the Euro shall be Brussels, Belgium, or such other quotations or, in the case of Euros, rates of exchange as the Company shall deem appropriate. The provisions of this paragraph shall apply in determining the equivalent number of votes which each Holder or proxy shall be entitled to in respect of Securities of a Series denominated in a currency other than United States dollars. All decisions and determinations of the Company regarding the Market Exchange Rate shall be in its sole discretion and shall, in the absence of manifest error, be conclusive for all purposes and irrevocably binding upon the Company, the Trustee and all Holders. SECTION 10.14. Judgment Currency. The Company agrees, to the fullest extent that it may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any court it is necessary to convert any sum due in respect of the principal of or interest on the Securities of any Series (the "Required Currency") into a currency in which such judgment will be rendered (the "Judgment Currency"), the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on the day on which final judgment is entered, unless such day is not a New York Banking Day then, to the extent permitted by applicable law, the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment 61 Currency on the New York Banking Day preceding the day on which final judgment is entered and (b) its obligations under this Indenture to make payments in the Required Currency (i) shall not be discharged or satisfied by any tender, or any recovery pursuant to any judgment (whether or not entered in accordance with subsection (a)), in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the actual receipt, by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments, (ii) shall be enforceable as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable and (iii) shall not be affected by judgment being obtained for any other sum due not previously tendered or recovered under this Indenture. For purposes of the foregoing, "New York Banking Day" means any day except a Saturday, Sunday or a legal holiday in The City of New York or a day on which banking institutions in The City of New York are authorized by law or required by executive order to close. 62 IN WITNESS WHEREOF, the undersigned have caused this Indenture to be duly executed as of the date first written above. NEWCOURT CREDIT GROUP INC. By: /s/ GLENN A. VOTEK --------------------------------- Printed Name: Glenn A. Votek Title: Executive Vice President and Treasurer THE CHASE MANHATTAN BANK, as Trustee By_____________________________ Printed Name:____________________ Title:___________________________ IN WITNESS WHEREOF, the undersigned have caused this Indenture to be duly executed as of the date first written above. NEWCOURT CREDIT GROUP INC. By: --------------------------------- Printed Name: Glenn A. Votek Title: Executive Vice President and Treasurer THE CHASE MANHATTAN BANK, as Trustee By /s/ L. O'BRIEN --------------------------------- Printed Name: L. O'Brien Title: Senior Trust Officer STATE OF NEW JERSEY ) ) ss.: Parsippany, N.J. COUNTY OF ) On the 15th day of December, 1998, before me personally came Glenn A. Votek, to me known, who, being by me duly sworn, did depose and say that he is the Treasurer of Newcourt Credit Group Inc., one of the corporations described in and which executed the above instrument, and that he signed his name thereto by like authority. /s/ Karen M. Geisler ------------------------ Notary Public KAREN M. GEISLER NOTARY PUBLIC OF NEW JERSEY Commission Expires 5/29/2001 STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) On the 15th day of December, 1998, before me personally came L. O'Brien, to me known, who, being by me duly sworn, did depose and say that he resides at 17 W87 Str, NY, NY, that he is a Senior Trust Officer of The Chase Manhattan Bank, one of the corporations described in and which executed the above instrument, and that he signed his name thereto by like authority. /s/ Emily Fayan ------------------------ Notary Public EMILY FAYAN Notary Public State of New York No. XX1737006 Qualified in Kings County Certificate filed in New York County Commission Expires December 31, 1999 64 EX-4 3 EXHIBIT 4B UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. EXCEPT AS OTHERWISE PROVIDED IN SECTION 2.11 OF THE INDENTURE, THIS SECURITY MAY BE TRANSFERRED, IN WHOLE BUT NOT IN PART, ONLY TO ANOTHER NOMINEE OF THE DEPOSITARY OR TO A SUCCESSOR DEPOSITARY OR TO A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. NO. FXR-1 CUSIP NO. 650905AC6 NEWCOURT CREDIT GROUP INC. NOTE, SERIES A (FIXED RATE) Original Issue Date: 12/15/1998 Initial Optional Redemption Date: N/A Issue Price: 99.739% Optional Redemption Price: N/A Interest Rate: 7.125% Annual Redemption Price Reduction: N/A Maturity Date: 12/17/2003 Optional Repayment Date(s): N/A Principal Amount: $300,000,000
Newcourt Credit Group Inc., a corporation organized under the laws of the Province of Ontario (herein referred to as the "Company"), for value received, hereby promises to pay to Cede & Co. or registered assigns, the principal sum of Three Hundred Million Dollars ($300,000,000) on the Maturity Date shown above and to pay interest thereon at the rate per annum shown above until principal hereof is paid or made available for payment. The Company will pay interest semiannually on June 15 and December 15 (each an "Interest Payment Date"), commencing with the Interest Payment Date immediately following the Original Issue Date shown above (except as provided below), and on the Maturity Date shown above. Interest on this Note will accrue from the most recent Interest Payment Date to which interest has been paid or duly provided for or, if no interest has been paid or duly provided for, from the Original Issue Date shown above. The amount of interest payable on any Interest Payment Date shall be computed on the basis of a year of twelve 30-day months. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture referred to below, be paid to the person in whose name this Note is registered at the close of business on the Record Date for such interest payment date which shall be the May 31 or November 30 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date; provided, however, that interest payable on the Maturity Date (whether or not such date is an Interest Payment Date) shall be payable to the person to whom principal shall be payable, and, if the Original Issue Date of this Note is between a Record Date and the corresponding Interest Payment Date, the first payment of the interest will be made on the Interest Payment Date following the next succeeding Record Date to the person in whose name this Note is registered at the close of business on such Record Date. Payment of the principal of and interest on this Note will be made at the office or agency of the Company maintained for that purpose in the Borough of Manhattan, The City of New York, State of New York, in such coin or currency of the United States of America as at the time of payment shall be legal tender for payment of public and private debts; provided, however, that at the option of the Company payment of interest other than interest due at the Maturity Date shown above may be made by check mailed to the address of the person entitled thereto as such address shall appear in the Security Register. "Business Day" means any day, other than a Saturday or a Sunday, and that is neither a legal holiday nor a day on which banking institutions are authorized or required by law or regulation to close in The City of New York. This note is guaranteed as to payment of principal, premium, if any, and interest by the AT&T Capital Corporation (the "Guarantor"). REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH IN THIS PLACE. This Note shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been executed by the Trustee under the Indenture referred to herein. IN WITNESS WHEREOF, Newcourt Credit Group Inc. has caused this instrument to be duly executed under its corporate seal. Dated: December 15, 1998 NEWCOURT CREDIT GROUP INC. By: /s/ Glenn A. Votek ---------------------------- Attest /s/ Scott Moore ------------------------------- CERTIFICATE OF AUTHENTICATION This is one of the Certificated Securities of the Series designated therein referred to in the within-mentioned Indenture. THE CHASE MANHATTAN BANK, as Trustee By: /s/ L. O'Brien ------------------------------------- Authorized Officer [REVERSE OF NOTE] This note is one of a duly authorized issue of Securities of the Company (herein referred to as the "Securities"), issued and to be issued in one or more series under and pursuant to an Indenture dated as of December 15, 1998 (as amended, restated or supplemented from time to time, the "Indenture"), between the Company and The Chase Manhattan Bank, as Trustee (the "Trustee"), to which Indenture and all indentures supplemental thereto reference is hereby made for description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holder (the words "Holders" or "Holder" meaning the registered holders or registered holder) of the Securities. This note is one of the series of Securities designated as Notes, Series A (herein referred to as the "Notes"). The Guarantor has guaranteed the payment of principal, premium, if any, and interest on the Notes and reference is hereby made to the Guarantee dated as of December 15, 1998 by the Guarantor in favor of the Trustee for the benefit of the holders of the Securities for a complete description of the terms of such Guarantee. In case an Event of Default with respect to the Notes, as defined in the Indenture, shall have occurred and be continuing, the principal hereof may be declared, and upon such declaration shall become due and payable in the manner, with the effect and subject to the conditions provided in the Indenture. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the outstanding Securities of each series affected by any such amendment or modification (with each series voting as one class). The Indenture also contains provisions permitting the Holders of not less than a majority in principal amount of the outstanding Securities of each series affected thereby (with each series voting as one class), on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture. The Indenture also provides that, regarding the Securities of any series, the Holders of not less than a majority in principal amount of the outstanding Securities of such series may waive certain past defaults and their consequences on behalf of the Holders of all Securities of such series. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon registration of transfer hereof or in exchange here for or in lieu hereof whether or not notation of such consent or waiver is made upon this Note. The Indenture contains provisions setting forth certain conditions to the institution of proceedings by Holders of Securities with respect to the Indenture or for any remedy under the Indenture. No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Note at the place, at the respective times, at the rate and in the coin or currency herein prescribed. The Notes are issuable as registered Notes without coupons in denominations that are integral multiples of U.S. $1,000. At the office or agency of the Company referred to above and in the manner and subject to the limitations provided in the Indenture, Notes may be exchanged without service charge for a like aggregate principal amount of Notes having the same maturity, interest rate, redemption provisions, repayment provisions, and Original Issue Date of other authorized denominations. Unless the face of this Note indicates that an Optional Redemption Price is applicable to this Note, this Note may not be redeemed prior to the Maturity Date. If the face of this Note indicates that an Optional Redemption Price is applicable to this Note, then this Note may be redeemed at the option of the Company as a whole, or from time to time in part, on or after the Initial Optional Redemption Date specified on the face hereof and prior to the Maturity Date, at the Optional Redemption Price specified on the face hereof (expressed as a percentage of the principal amount) (subject to reduction as hereinafter provided), together in each case with accrued interest to the date fixed for redemption; provided that if the face of this Note indicates that this Note is subject to an "Annual Redemption Price Reduction", then the Optional Redemption Price shall decline at each anniversary of the Initial Optional Redemption Date by the Annual Redemption Price Reduction until the Optional Redemption Price is 100% of such principal amount. Notice of redemption shall be mailed to the registered holders of the Notes designated for redemption at their last registered address not less than thirty nor more than sixty days prior to the date fixed for redemption, all as provided in the Indenture. In the event of redemption of this Note in part only, a new Note or Notes for the amount of the unredeemed portion hereof shall be issued in the name of the holder hereof upon the presentation and cancellation hereof. Unless an Optional Repayment Date or Dates is indicated on the face of this Note, this Note shall not be subject to repayment at the option of the holder prior to the Maturity Date. If an Optional Repayment Date or Dates is indicated on the face of this Note, this Note may be subject to repayment at the option of the holder on the Optional Repayment Date or Dates specified on the face hereof on the terms set forth herein. On any Optional Repayment Date, this Note will be repayable in whole or in part in increments of U.S. $1,000 at the option of the holder hereof at a price equal to 100% of the principal amount to be repaid, together with interest hereon payable to the date of repayment. For this Note to be repaid in whole or in part at the option of the holder hereof, the Company must receive at the corporate trust office of the Trustee in the Borough of Manhattan, The City of New York, at least 30 calendar days but not more than 45 calendar days prior to the date of repayment, (i) this Note with the form entitled "Option to Elect Repayment" on the reverse hereof duly completed or (ii) a telegram, telex, facsimile transmission or a letter from a member of a national securities exchange, the National Association of Securities Dealers, Inc. or a commercial bank or trust company in the United States setting forth the name of the holder of this Note, the principal amount of this Note, the principal amount of this Note to be repaid, the certificate number or description of the tenor and terms of this Note, a statement that the option to elect repayment is being exercised thereby and a guarantee that this Note to be repaid, together with the duly completed form entitled "Option to Elect Repayment" on the reverse hereof, will be received by the Trustee not later than the third Business Day after the date of such telegram, telex, facsimile transmission or letter, and this Note and form duly completed must be received by the Trustee by such third Business Day. Upon due presentment for registration of transfer of this Note at the above-mentioned office or agency of the Company, a new Note or Notes having the same maturity, interest rate, redemption provisions, repayment provisions and Original Issue Date of authorized denominations, for a like aggregate principal amount, will be issued to the transferee as provided in the Indenture. No service charge shall be made for any such transfer, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto. The Company, the Trustee, and any agent of the Company or the Trustee may deem and treat the Holder hereof as the absolute owner hereof (whether or not this Note shall be overdue and notwithstanding any notation of ownership or other writing hereof) for the purpose of receiving payment of or on account of the principal hereof and, subject to the provisions on the face hereof, interest hereon, and for all other purposes, and neither the Company nor the Trustee nor any such agent shall be affected by any notice to the contrary. No recourse shall be had for the payment of the principal of or the interest on this Note, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture or any indenture supplemental thereto, against any incorporator, shareholder, officer or director as such, past, present or future, of the Company, of the Guarantor or of any successor corporations, either directly or through the Company, the Guarantor or any successor corporation, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released. This Note shall be deemed to be a contract made under the laws of the State of New York and for all purposes shall be governed by and construed in accordance with the laws of said State. All terms used in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM - as tenants in common TEN ENT - as tenants by the entireties JT TEN - as joint tenants with right of survivorship and not as tenants in common
UNIF GIFT MIN ACT - _______________ Custodian ________________ (Cust) (Minor) Under Uniform Gifts to Minor Act _____________________ (State) Additional abbreviations may also be used though not in the above list. FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto [PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE] - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- [PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING ZIP CODE, OF ASSIGNEE] - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- the within Note and all rights thereunder, hereby irrevocably constituting and appointing such person attorney to transfer such Note on the books of the Company, with full power of substitution in the premises. Dated: -------------------------- NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within Note in every particular without alteration or enlargement or any change whatsoever. OPTION TO ELECT REPAYMENT The undersigned hereby irrevocably request(s) and instruct(s) the Company to repay the within Note (or portion thereof specified below) pursuant to its terms at a price equal to the principal amount thereof, together with interest to the Optional Repayment Date, to the undersigned at - ---------------------------------------------------------------- (Please print or typewrite name and address of the undersigned) If less than the entire principal amount of the within Note is to be repaid, specify the portion thereof (which shall be increments of U.S. $1,000) which the holder elects to have repaid: ___________________; and specify the denomination or denominations (which shall be increments of U.S. $1,000) of the Notes to be issued to the holder for the portion of the within Note not being repaid (in the absence of any such specification, one such Note will be issued for the portion not being repaid): ------------------------------------ Date: ----------------------- ------------------------------------ NOTICE: The signature on this Option to Elect Repayment must correspond with the name as written upon the face of the within instrument in every particular without alteration or enlargement or any change whatsoever. EX-4 4 EXHIBIT 4C GUARANTEE Guarantee dated as of December 15, 1998, made by AT&T Capital Corporation (together with its successors and assigns, the "Guarantor"), a Delaware corporation, to and in favor of The Chase Manhattan Bank, as Trustee (together with its successors and assigns, the "Trustee") under the Indenture (as defined herein), for the benefit of the registered holders of the Securities (as defined herein) (collectively, the "Holders"). WHEREAS the Guarantor is an indirect wholly-owned subsidiary of Newcourt Credit Group Inc., a corporation incorporated under the laws of the Province of Ontario (the "Company"); WHEREAS the Company will issue from time to time debentures, notes and other evidences of indebtedness, (the "Securities") pursuant to the Indenture dated as of December 15, 1998 by and among the Company and The Chase Manhattan Bank, as Trustee (the "Indenture"); and WHEREAS the Guarantor, as an indirect wholly-owned subsidiary of the Company, will derive substantial and direct benefits (which benefits are hereby acknowledged by the Guarantor) from the issuance and sale of the Securities. NOW THEREFORE, in consideration of the foregoing premises, and other good and valuable consideration given by the Holders and the Company to the Guarantor, the receipt and sufficiency of which are hereby acknowledged, the Guarantor hereby agrees as follows (capitalized terms used but not defined herein shall be as defined in the Indenture): SECTION 1. GUARANTEE. The Guarantor hereby, irrevocably and unconditionally guarantees (as a guarantor and not as a surety) to the Trustee for the benefit of the Holders of the Securities the due and punctual payment of the principal of, premium, if any, and interest on such Securities when and as the same shall become due and payable, whether at maturity, upon redemption or otherwise, according to the terms of the Indenture; (the obligations set forth in this Section 1 being herein called the "Guaranteed Obligations"). SECTION 2. ABSOLUTE LIABILITY. The Guarantor hereby guarantees that the Guaranteed Obligations will be paid to the Holders strictly in accordance with the terms and conditions hereof, and that the liability of the Guarantor under this Guarantee shall be absolute and unconditional irrespective of: (a) the validity or enforceability of the Securities or the Indenture; (b) any contest by the Company or any other person as to the amount of the Guaranteed Obligations or the validity or enforceability of the Securities or the Indenture; (c) any defense, counter-claim or right of set-off available to the Company; (d) any extension of the time or times for payment of the Guaranteed Obligations or any other indulgences which the Holders may grant to the Company or any amendment to or alteration of the Indenture or the Securities; and (e) any other circumstances which might otherwise constitute a defense available to, or a discharge of, the Guarantor, the Company or any other person in respect of the Guaranteed Obligations or the Guarantor in respect of the Guarantee. SECTION 3. REMEDIES. The guarantee set forth in Section 1 constitutes a present and continuing guarantee of payment and performance and not of collection. The Guarantor agrees that its obligations hereunder shall be joint and several with any and all other guarantees given in connection with the Guaranteed Obligations from time to time. The Guarantor agrees that neither the Trustee nor the Holders shall be bound to exhaust their recourse against the Company or any other person or to make demand upon the Company or to realize on any security they may hold in respect of the Guaranteed Obligations before being entitled to payment or performance hereunder. The Guarantor hereby waives the right to require the Trustee or the Holders to join the Company in any action brought hereunder or to commence any action against or obtain any judgment against the Company or to pursue any other remedy or enforce any other right. The Guarantor further agrees that nothing contained herein or otherwise shall prevent the Trustee or the Holders from pursuing concurrently or successively all rights and remedies available to them at law and/or in equity or under the Indenture, and the exercise of any of their rights or the completion of any of their remedies shall not constitute a discharge of any of the Guarantor's obligations hereunder. SECTION 4. PAYMENT ON DEMAND. The Guarantor shall make payment of the amount of the Guaranteed Obligations and all other amounts payable by it to the Holders hereunder forthwith after demand therefor is made in writing to it and such demand shall be deemed to have been effectively made when either an envelope containing such demand, addressed to it c/o Newcourt Credit Group Inc., 2 Gatehall Road, Parsippany, New Jersey, 07054 for the attention of Treasurer, is personally delivered to such address or a facsimile transmission containing such demand is sent to the Guarantor, for the attention of the Treasurer, at the following fax number: (973) 355-7021. SECTION 5. SUBROGATION. Upon receipt by the Holders of any payment or payments on account of liability under this Guarantee, the Guarantor shall not be entitled to claim repayment against the Company until the claims of the Holders against the Company in respect of the Guaranteed Obligations have been repaid in full; and in the case of the liquidation, winding-up or bankruptcy of the Company (whether voluntary or compulsory) or in the event that the Company shall make a bulk sale of any of the Company's assets within the provisions of any bulk sales legislation or makes an assignment for the benefit of creditors or the assets of the Company are distributed to creditors for any other reason, the Holders shall have the right to rank in priority to the Guarantor for their full claims in respect of the Guaranteed Obligations and receive all distributions and other payments in respect thereof until their claims in respect of the Guaranteed Obligations have been paid in full, and the Guarantor shall continue to be liable, less any payments made by or on behalf of the Guarantor, for any balance which may be owing to the Holders by the Company. If any amount shall be paid to the Guarantor on account of any subrogation rights at any time when 2 all the Guaranteed Obligations shall not have been paid in full, such amount shall be held in trust for the benefit of the Holders and shall forthwith be paid to the Holders. SECTION 6. SUBORDINATION. All obligations, liabilities and indebtedness of the Company to the Guarantor of any nature whatsoever (the "Corporate Indebtedness") shall be subordinated to the payment in full of all obligations owing by the Company to the Holders, and any payments received by the Guarantor on account of such Corporate Indebtedness at a time when any Default or Event of Default exists shall be collected and received by the Guarantor in trust and paid over to the Holders without impairing or releasing any obligations of the Guarantor hereunder. The Guarantor shall not assign the Corporate Indebtedness nor any part thereof to any person other than to a subsidiary of the Company which has provided a guarantee to the Trustee for the benefit of the Holders in respect of the Guaranteed Obligations in the form and substance of this Guarantee, without the prior written consent of the Holders. SECTION 7. SUSPENSION OF GUARANTOR RIGHTS. The Guarantor agrees that so long as any obligations remain outstanding hereunder, whether present or future, direct or indirect, absolute or contingent, matured or not, the Guarantor shall not exercise any rights which the Guarantor may at any time have by reason of the performance of any of its obligations hereunder: (a) to be indemnified by the Company; (b) to claim contribution from any other guarantor of the debts, liabilities or obligations of the Company; or (c) to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Holders under the Indenture. SECTION 8. WAIVERS. The Guarantor hereby waives, to the extent permitted by applicable law, (i) notice of acceptance of this Guarantee by the Holders and any and all notices and demands of every kind which may be required to be given by any statute, rule or law, (ii) any defense, right of set-off or other claim which the Guarantor may have against the Company or which the Guarantor or the Company may have against the Holders, (iii) presentment for payment, demand for payment, notice of nonpayment or dishonor, protest and notice of protest, diligence in collection and any and all formalities which otherwise might be legally required to charge the Guarantor with liability, except for demands or notices expressly provided for herein, (iv) any failure by the Holders or the Trustee to inform the Guarantor of any facts the Holders or the Trustee may now or hereafter know about the Company, the Securities or the transactions contemplated by the Indenture, it being understood and agreed that the Holders or the Trustee have no duty to so inform and that the Guarantor is fully responsible for being and remaining informed by the Company of all circumstances bearing on the existence or creation, or the risk of nonpayment or nonperformance of the Guaranteed Obligations and (v) any and all right to cause a marshalling of assets of the Company or any other action by any court or governmental body with respect thereto. 3 SECTION 9. AMENDMENT. (a) With the written consent of the Holders of a majority in principal amount of the outstanding Securities of each Series (with each Series voting as a class), the Guarantor and the Trustee may add any provisions or change or eliminate any provisions of this Guarantee or to modify in each case in any manner, the rights of the Holders of each such Series under this Guarantee. The Holders of a majority in principal amount of the outstanding Securities of each Series affected by such waiver (with each Series voting as a class), by notice to the Trustee, may waive compliance by the Guarantor with any provision of this Guarantee; but no such waiver shall extend to or affect (x) any other Series or Securities or (y) such provision except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Guarantor in respect to any such provision shall remain in full force and effect; provided, however, without the consent of each Holder affected, an amendment or waiver may not (i) reduce the amount of Securities whose Holders must consent to an amendment or waiver or (ii) make any changes in Section 1; (b) Notwithstanding the provisions of Section 9(a), the Guarantor and the Trustee may amend this Guarantee to cure any ambiguity, defect or inconsistency herein or to make any other change; provided, however, no such action shall adversely affect the rights of any Holder. (c) The Trustee need not enter into any such amendment that adversely affects its rights, duties or immunities hereunder or otherwise and shall be entitled to receive as a condition to entering into any such amendment an Opinion of Counsel and Officers' Certificate complying with Sections 10.04 and 10.05 of the Indenture. SECTION 10. CONTINUING GUARANTEE. The guarantee herein shall be a continuing guarantee and shall extend to all present and future Guaranteed Obligations and shall be binding as a continuing obligation of the Guarantor until the earlier of (i) the date the Guarantor is released from any further obligation hereunder in accordance with Article 8 of the Indenture; and (ii) the date on which the Company or the Guarantor shall have performed and satisfied in full the Guaranteed Obligations. This Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Guaranteed Obligations is rescinded or must otherwise be refunded by the Holders upon the insolvency, bankruptcy or reorganization of the Company or otherwise, regardless of whether the Holders contested the order requiring the return of such payment, all as though such payment had not been made. SECTION 11. INTEREST ACT (CANADA). The Guarantor acknowledges that, for the purposes of the Interest Act (Canada), (i) whenever any interest or fee applicable to the Guaranteed Obligations is calculated using a rate based on a year of 360 days or 365 days, such rate determined pursuant to such calculation, when expressed as an annual rate, is equivalent to (x) the applicable 4 rate based on a year of 360 days or 365 days, as the case may be, (y) multiplied by the actual number of days in the calendar year in which the period for which such interest or fee is payable (or compounded) ends, and (z) divided by 360 or 365 as the case may be; (ii) the principle of deemed reinvestment of interest does not apply to any interest calculation in respect of the Guaranteed Obligations; and (ii) the rates of interest stipulated in respect of the Guaranteed Obligations are intended to be nominal rates and not effective rates or yields. SECTION 12. SUCCESSORS OF THE COMPANY. Any change or changes in the name of the Company or reorganization (whether by way of reconstruction, consolidation, amalgamation, merger, transfer, sale, lease or otherwise) of the Company or its business shall not affect or in any way limit or lessen the liability of the Guarantor hereunder and this Guarantee shall extend to any person, firm or Company acquiring and from time to time carrying on the business of the Company. SECTION 13. NO RECOURSE. Any right of subrogation acquired by the Guarantor by reason of payment under or pursuant to this Guarantee shall not be exercised until the Guaranteed Obligations and other amounts due to the Holders hereunder have been paid or repaid in full and shall be no greater than the right held by the Holders, and the Guarantor shall have no recourse against the Holders for any irregularity or defect in the manner or procedure by which the Holders make demand or pursue any rights or remedies they may have. SECTION 14. REPRESENTATIONS AND WARRANTIES. The Guarantor represents and warrants that: (a) ORGANIZATION AND QUALIFICATION. It is a corporation duly incorporated and validly existing under the laws of the State of Delaware. (b) CORPORATE POWER. It has full corporate right, power and authority to own its property and assets and to carry on its business as now conducted and as contemplated to be conducted and to enter into and perform this Guarantee. (c) CONFLICT WITH OTHER INSTRUMENTS. Neither the execution and delivery of this Guarantee nor the consummation of the transactions herein contemplated nor compliance with the terms, conditions and provisions hereof (i) conflicts with or results in a breach of any of the terms, conditions or provisions of (A) its charter documents or by-laws; (B) any law, rule or regulation having the force of law; (C) any material contractual restriction binding on or affecting it or its properties; or (D) any writ, judgment, injunction, determination or award which is binding on it; or (ii) results in, or requires the creation or imposition of any lien upon or security interest in or with respect to the properties now owned or hereafter acquired by it under any contractual provision binding on or affecting it. (d) AUTHORIZATION, GOVERNMENTAL APPROVALS ETC. The execution and delivery of this Guarantee and the consummation by it of the transactions herein contemplated have been duly authorized by all necessary corporate action 5 and no authorization, consent, approval, license or exemption under any applicable law, rule or regulation having the force of law, and no registration, qualification, designation, declaration, recording, or filing with any official body, is or was necessary therefor or to perfect the same or to preserve the benefit thereof to the Holders, except such as are in full force and effect, unamended, at the date hereof. (e) EXECUTION AND BINDING OBLIGATION. This Guarantee has been duly executed and delivered by it, and constitutes the legal, valid and binding obligation of it enforceable against it in accordance with its terms, subject to the effect of any applicable bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). (f) ACTIONS. There is no pending or threatened action or proceeding affecting it before any court, governmental agency or arbitrator, which may materially adversely affect its financial condition or operations. (g) SHARES. The Company is the registered and beneficial holder of 100% of the issued and outstanding shares of the capital stock of Newcourt Credit Group USA Inc.; Newcourt Credit Group USA Inc. is the registered and beneficial holder of 100% of the issued and outstanding shares of the capital stock of the Guarantor. SECTION 15. PAYMENT OF TAXES AND OTHER TAXES. (a) The Guarantor hereby agrees to obtain any necessary exchange control approvals, consents or authorizations which may at any time and from time to time be required by the laws of the Province of Ontario or any state in the United States in connection with the making of payments hereunder. Any and all payments by the Guarantor hereunder shall be made and shall be free and clear of and without set-off or counterclaim and without deduction for or on account of, or withholding for any and all present or future income or other taxes, levies, imposts, dues, charges, fees, deductions, withholdings or restrictions or conditions of any nature whatever now or hereafter imposed, levied, collected or withheld or assessed by any country (or by any political subdivision or taxing authority thereof or therein), and all liabilities with respect thereto (all such taxes, levies, imposts, duties, charges, fees, deductions, withholdings and liabilities being hereinafter referred to as "Taxes") unless such Taxes are required by law or the administration thereof to be deducted or withheld. If the Guarantor shall be required by law to deduct or withhold any Taxes from or in respect of any amount payable hereunder, subject as provided in the next following sentence, (i) the sum payable shall be increased as may be necessary so that after making all 6 required deductions or withholdings (including deduction or withholding applicable to additional amounts paid under this Section), the Holders receive an amount equal to the sum they would have received if no deduction or withholding had been made, (ii) the Guarantor shall make such deductions or withholdings, and (iii) the Guarantor shall pay the full amount deducted or withheld to the relevant taxation or other authority in accordance with applicable law. (b) The Guarantor shall pay any present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies (all such taxes, charges and levies being hereinafter referred to as "Other Taxes") which arise from any payment made hereunder or from the execution, delivery or registration of, or otherwise with respect to, this Guarantee. (c) The Guarantor shall indemnify the Holders for the full amount of Taxes or Other Taxes (including, without limitation, any Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this Section) paid by the Holders and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, whether or not such Taxes or Other Taxes were correctly or legally asserted. Payment under this indemnification shall be made within 30 days from the date the Holders make written demand therefor. A certificate as to the amount of such Taxes or Other Taxes submitted to the Guarantor by the Holders and evidence of payment thereof shall, in the absence of manifest error, be prima facie evidence of the amount due by the Guarantor to the Holders. SECTION 16. GOVERNING LAW. (a) This Guarantee shall be governed by and construed in accordance with the laws of the State of New York applicable therein and shall be treated in all respects as a New York contract. (b) The Guarantor hereby (i) irrevocably submits to the jurisdiction of any court sitting in the State of New York over any suit, action or proceeding arising out of or relating to this Guarantee or the Indenture; (ii) irrevocably agrees that all claims in respect of any such action or proceeding may be heard and determined in such court; (iii) irrevocably waives, to the fullest extent permitted by law, any objection which it may have or hereafter have to the laying of the venue of any such suit, action or preceding brought in such a court and any claim that any such suit, action or proceeding brought in such a court has been brought in an inconvenient forum; and (iv) irrevocably appoints Newcourt Credit Group Inc. (the "Process Agent"), with an office at the date hereof at 2 Gatehall Drive, NJ 07054 (Fax No. 973/355-7058), its authorized agent to accept and acknowledge service of any and all process which may be served in any suit, action or proceeding. Such service may be 7 made by delivering a copy of such process to the Guarantor in care of the Process Agent at the Process Agent's above address and the Guarantor hereby irrevocably authorizes and directs the Process Agent to accept such service on its behalf. As an alternative method of service, the Guarantor also irrevocably consents to the service of any and all process in any such action or proceeding by the delivery of copies of such process to the Guarantor to: c/o Newcourt Credit Group Inc., BCE Place, 181 Bay Street, P.O. Box 827, Toronto, Canada M5J2T3 for the attention of President. The Guarantor agrees that a final judgment in any such action or proceeding may be enforced in any other manner provided by law. Nothing in this Section shall affect the right of the Trustee or the Holders to serve process in any manner permitted by law or limit the rights of the Trustee or the Holders to bring proceedings against the Guarantor in the courts of any other jurisdiction. (c) Subject to Section 16(e), the Guarantor hereby consents in respect of any legal action or proceedings arising out of or in connection with this Guarantee for the payment and performance hereof to the giving of any relief or the issue of any process in connection with such action or proceedings, including, without limitation the making, enforcement or execution against any property whatsoever (irrespective of its use or intended use) of any order or judgment which may be made or given in such action or proceedings. (d) To the extent that the Guarantor has or hereafter may acquire any immunity from the jurisdiction of any court or from any legal process (whether service of notice, attachment prior to judgment, attachment in the aid of execution, execution or otherwise) with respect to itself or its property, the Guarantor hereby irrevocably waives, to the fullest extent permitted by law, such immunity in respect of its obligations under this Guarantee and any security for the payment and performance hereof. (e) Nothing in this Section shall constitute a waiver by the Guarantor of any right to (i) appeal any order or judgment referred to herein; (ii) seek any stay or reconsideration or review of any such order or judgment, or (iii) seek any stay of execution or levy pending any appeal from, or suit, action or proceeding for reconsideration or review of, any such order or judgment. (f) The Guarantor agrees that the Trustee or the Holders shall have the right to proceed against the Guarantor or its property in a court in any location to enable such person to (i) obtain personal jurisdiction over the Guarantor, or (ii) to enforce a judgment or other court order entered in favor of such person. The Guarantor agrees that it will not assert any permissive counterclaims in any proceeding brought by such person to enforce a judgment or other court order in favor of such person. The Guarantor waives any objection that it may have to the location of the court in which such person has commenced a proceeding described in this subsection. 8 SECTION 17. HEADINGS, ETC. The division of this Guarantee into sections and the insertion of headings are for convenience of reference only and shall not affect the interpretation hereof. SECTION 18. SEVERABILITY. Any provision of this Guarantee which is invalid or not enforceable shall not affect any other provision and shall be deemed to be severable. SECTION 19. SUCCESSORS AND ASSIGNS. This Guarantee shall extend to and inure to the benefit of the Trustee and the Holders and their respective successors and assigns and shall be binding upon the Guarantor and its successors and assigns. This Guarantee is assignable by the Holders to the extent and in the same proportion that any underlying interest in the Securities and the Indenture has been assigned and is assignable by the Trustee to any successor Trustee under the Indenture. [Signature Page Follows] 9 IN WITNESS WHEREOF, the Guarantor has duly executed this Guarantee as of the day and year first above written. AT&T CAPITAL CORPORATION By: /s/ GLENN A. VOTEK -------------------------------------------- Name: Glenn A. Votek Title: Executive Vice President and Treasurer EX-4 5 EXHIBIT 4D ================================================================================ REGISTRATION RIGHTS AGREEMENT Dated as of December 15, 1998 among NEWCOURT CREDIT GROUP INC., AT&T CAPITAL CORPORATION and LEHMAN BROTHERS INC. as representative for the Initial Purchasers ================================================================================ TABLE OF CONTENTS 1. Definitions.................................................1 2. Securities Subject to This Agreement........................3 3. Registered Exchange Offer...................................3 4. Shelf Registration..........................................5 5. Liquidated Damages..........................................6 6. Registration Procedures.....................................7 7. Registration Expenses......................................13 8. Indemnification and Contribution...........................13 9. Participation in Underwritten Registrations................16 10. Selection of Underwriters..................................17 11. Miscellaneous..............................................17
-i- REGISTRATION RIGHTS AGREEMENT This Registration Rights Agreement (this "Agreement") is made and entered into as of December 15, 1998 by and among Newcourt Credit Group Inc., formed under the laws of the Province of Ontario, Canada (the "Company"), AT&T Capital Corporation, a corporation formed under the laws of Delaware ("AT&T Capital") and Lehman Brothers Inc., as representative for the Initial Purchasers (as such term is defined in the Purchase Agreement) (Lehman Brothers Inc. and the Initial Purchasers shall be collectively referred to herein as the "Initial Purchasers"). This Agreement is entered into in connection with the Purchase Agreement, dated as of December 8, 1998, between the Company, AT&T Capital and Lehman Brothers Inc. as representative of the Purchasers (the "Purchase Agreement"), which provides for the sale by the Company to the Initial Purchasers of $300,000,000 principal amount of the Company's 7.125% Senior Notes due December 17, 2003 (the "Notes"). The Notes are general unsecured obligations of the Company and rank pari passu in right of payment to all existing and future senior unsecured debt of the Company; the payment of principal and interest on the Notes will be guaranteed by AT&T Capital Corporation pursuant to the Guarantee. Capitalized terms used but not specifically defined herein have the respective meaning ascribed thereto in the Purchase Agreement. As an inducement to the Initial Purchaser to enter into the Purchase Agreement and in satisfaction of a condition to your obligations thereunder, the Company agrees with you, for the benefit of the holders of the Notes (including the Initial Purchasers) (the "Holders"), as follows: 1. Definitions. As used in this Agreement, the following capitalized terms shall have the following meanings: Broker-Dealer: Any broker or dealer registered under the Exchange Act. Closing Date: The date on which the Notes were sold. Commission: The Securities and Exchange Commission. Consummate: A Registered Exchange Offer shall be deemed "Consummated" for purposes of this Agreement upon the occurrence of (i) the filing and effectiveness under the Securities Act of the Exchange Offer Registration Statement relating to the Exchange Notes to be issued in the Exchange Offer, (ii) the maintenance of such Registration Statement continuously effective and the keeping of the Exchange Offer open for a period not less than the minimum period required pursuant to Section 3(b) hereof, and (iii) the delivery by the Company of the Exchange Notes in the same aggregate principal amount, interest rate, maturity date and interest payment dates as the Transfer Restricted Securities that were validly tendered by Holders thereof pursuant to the Exchange Offer. Damages Payment Date: With respect to the Notes, each Interest Payment Date until the earlier of (i) the date on which Liquidated Damages no longer are payable or (ii) maturity of the Notes. Effectiveness Target Date: As defined in Section 5. Exchange Act: The Securities Exchange Act of 1934, as amended. Exchange Notes: The Notes to be issued pursuant to the Indenture in the Exchange Offer (which shall be in either book-entry or certificated form and issued pursuant to the Indenture). Exchange Offer: The registration by the Company under the Securities Act of the Exchange Notes pursuant to a Registration Statement pursuant to which the Company offers the Holders of all outstanding Transfer Restricted Securities the opportunity to exchange all such outstanding Transfer Restricted Securities held by such Holders for Exchange Notes in an aggregate amount equal to the aggregate amount of the Transfer Restricted Securities tendered in such exchange offer by such Holders. Exchange Offer Registration Statement: The Registration Statement relating to the Exchange Offer, including the Prospectus which forms a part thereof. Exempt Resales: The transactions in which the Initial Purchaser proposes to sell the Notes to certain "qualified institutional buyers," as such term is defined in Rule 144A under the Securities Act, to certain institutional "accredited investors," as such term is defined in Rule 501(a)(1), (2), (3) and (7) of Regulation D under the Securities Act ("Accredited Institutions"). Holder: As defined in Section 2(b) hereof. Indenture: The Indenture, dated as of December 15, 1998, between the Company and The Chase Manhattan Bank, as trustee (the "Trustee"), pursuant to which the Notes are to be issued, as such Indenture is amended or supplemented from time to time in accordance with the terms thereof. Initial Purchaser: As defined in the preamble hereto. Person: An individual, partnership, corporation, limited liability company, trust or unincorporated organization, or a government or agency or political subdivision thereof. Prospectus: The prospectus included in a Registration Statement, as amended or supplemented by any prospectus supplement and by all other amendments thereto, including post-effective amendments, and all material incorporated by reference therein. Registration Default: As defined in Section 5 hereof. Registration Statement: Any registration statement of the Company relating to (a) an offering of Exchange Notes pursuant to an Exchange Offer or (b) the registration for resale of Transfer Restricted Securities pursuant to the Shelf Registration Statement, which is filed pursuant to the provisions of this Agreement, in either case, including the Prospectus included therein, all amendments and supplements thereto (including post-effective amendments) and all exhibits and material incorporated by reference therein. Securities Act: The Securities Act of 1933, as amended. -2- Shelf Filing Deadline: As defined in Section 4 hereof. Shelf Registration Statement: As defined in Section 4 hereof. TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb), as amended. Transfer Restricted Securities: Each Note, until the earliest to occur of (a) the date on which such Note has been exchanged by a person other than a Broker-Dealer for Exchange Notes in the Exchange Offer, (b) following the exchange by a Broker-Dealer in the Exchange Offer of such Note for one or more Exchange Notes, the date on which such Exchange Notes are sold to a purchaser who receives from such Broker-Dealer on or prior to the date of such sale a copy of the prospectus contained in the Exchange Offer Registration Statement, (c) the date on which such Notes have been effectively registered under the Securities Act and disposed of in accordance with the Shelf Registration Statement or (d) the date on which such Notes are eligible to be distributed to the public pursuant to Rule 144 under the Securities Act; Underwritten Registration or Underwritten Offering: A registration in which securities of the Company are sold to an underwriter for reoffering to the public. 2. Securities Subject to This Agreement. (a) Transfer Restricted Securities. The securities entitled to the benefits of this Agreement are the Transfer Restricted Securities. (b) Holders of Transfer Restricted Securities. A Person is deemed to be a holder of Transfer Restricted Securities (each, a "Holder") whenever such Person owns Transfer Restricted Securities. 3. Registered Exchange Offer. (a) Unless the Exchange Offer shall not be permissible under applicable law or Commission policy (after the procedures set forth in Section 6(a) below have been complied with) the Company shall (i) cause to be filed with the Commission after the Closing Date, but in no event later than five (5) months after the Closing Date, a Registration Statement under the Securities Act relating to the Exchange Notes and the Exchange Offer, (ii) use its reasonable best efforts to cause such Registration Statement to become effective no later than eight (8) months after the Closing Date, (iii) in connection with the foregoing, file (A) all pre-effective amendments to such Registration Statement as may be necessary in order to cause such Registration Statement to become effective, (B) if applicable, a post-effective amendment to such Registration Statement pursuant to Rule 430A under the Securities Act and (C) cause all necessary filings in connection with the registration and qualification of the Exchange Notes to be made under the Blue Sky laws of such jurisdictions as are necessary to permit Consummation of the Exchange Offer, and (iv) unless the Exchange Offer would not be permitted by applicable law or Commission policy, the Company will commence the Exchange Offer and use its reasonable best efforts to issue on or prior to 30 business days after the date on which such Registration Statement was declared effective by the Commission, -3- Exchange Notes in exchange for all Transfer Restricted Securities tendered prior thereto in the Exchange Offer. The Exchange Offer shall be on the appropriate form permitting registration of the Exchange Notes to be offered in exchange for the Transfer Restricted Securities and to permit resales of Exchange Notes held by Broker-Dealers as contemplated by Section 3(c) below. (b) The Company shall use its reasonable best efforts to cause the Exchange Offer Registration Statement to be effective continuously and shall keep the Exchange Offer open for a period of not less than the minimum period required under applicable federal and state securities laws to Consummate the Exchange Offer; provided, however, that in no event shall such period be less than 20 business days. The Company shall cause the Exchange Offer to comply in all material respects with all applicable federal and state securities laws. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement. (c) The Company shall indicate in a "Plan of Distribution" section contained in the Prospectus contained in the Exchange Offer Registration Statement that any Broker-Dealer who holds Notes that are Transfer Restricted Securities and that were acquired for its own account as a result of market-making activities or other trading activities (other than Transfer Restricted Securities acquired directly from the Company), may exchange such Notes pursuant to the Exchange Offer, however, such Broker-Dealer may be deemed to be an "underwriter" within the meaning of the Securities Act and must, therefore, deliver a prospectus meeting the requirements of the Securities Act in connection with any resales of the Exchange Notes received by such Broker-Dealer in the Exchange Offer, which prospectus delivery requirement may be satisfied by the delivery by such Broker-Dealer of the Prospectus contained in the Exchange Offer Registration Statement. Such "Plan of Distribution" section shall also contain all other information with respect to such resales by Broker-Dealers that the Commission may require in order to permit such resales pursuant thereto, but such "Plan of Distribution" shall not name any such Broker-Dealer or disclose the amount of Exchange Notes held by any such Broker-Dealer except to the extent required by the Commission as a result of a change in policy announced after the date of this Agreement. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective, supplemented and amended as required by the provisions of Section 6(b) below to the extent necessary to ensure that it is available for resales of Exchange Notes acquired by Broker-Dealers for their own accounts as a result of market-making activities or other trading activities, and to ensure that it conforms with the requirements of this Agreement, the Securities Act and the policies, rules and regulations of the Commission as announced from time to time, for a period of 180 days from the date on which the Exchange Offer Registration Statement is declared effective. The Company shall provide sufficient copies of the latest version of such Prospectus to Broker-Dealers promptly upon request at any time during such 180-day period in order to facilitate such resales. -4- 4. Shelf Registration. (a) Shelf Registration. If the Company is not required to file an Exchange Offer Registration Statement or to consummate the Exchange Offer because the Exchange Offer is not permitted by applicable law or Commission policy (after the procedures set forth in Section 6(a) below have ben complied with) then the Company shall in lieu of the registration of the Exchange Notes pursuant to the Exchange Offer Registration Statement, use its reasonable best efforts to: (x) cause to be filed a shelf registration statement pursuant to Rule 415 under the Securities Act, which may be an amendment to the Exchange Offer Registration Statement (in either event, the "Shelf Registration Statement"), on or prior to the 90th day after the date on which the Company determines that it is not required to file the Exchange Offer Registration Statement (such date being the "Shelf Filing Deadline"), which Shelf Registration Statement shall provide for resales of all Transfer Restricted Securities the Holders of which shall have provided the information required pursuant to Section 4(b) hereof; and (y) cause such Shelf Registration Statement to be declared effective by the Commission on or before the 120th day after the Shelf Filing Deadline. The Company shall use its reasonable best efforts to keep such Shelf Registration Statement continuously effective, supplemented and amended as required by the provisions of Sections 6(b) hereof to the extent necessary to ensure that it is available for resales of Notes by the Holders of Transfer Restricted Securities entitled to the benefit of this Section 4(a), and to ensure that it conforms with the requirements of this Agreement, the Securities Act and the policies, rules and regulations of the Commission as announced from time to time, for a period ending on the earlier to occur of (x) second anniversary of the Closing Date and (y) the date on which all of the Transfer Restricted Securities have been exchanged for the Exchange Notes. (b) Provision by Holders of Certain Information in Connection with the Shelf Registration Statement. No Holder of Transfer Restricted Securities may include any of its Transfer Restricted Securities in any Shelf Registration Statement pursuant to this Agreement unless and until such Holder furnishes to the Company in writing, within 20 business days after receipt of a request therefor, such information as the Company may reasonably request for use in connection with any Shelf Registration Statement or Prospectus or preliminary Prospectus included therein. No Holder of Transfer Restricted Securities shall be entitled to Liquidated Damages pursuant to Section 5 hereof unless and until each Holder shall have used its best efforts to provide all such reasonably requested information. Each Holder as to which any Shelf Registration Statement is being effected agrees to furnish promptly to the Company all information required to be disclosed in order to make the information previously furnished to the Company by such Holder not materially misleading. -5- 5. Liquidated Damages. (a) If (a) any of the Registration Statements required by this Agreement is not filed with the Commission on or prior to the date specified for such filing in this Agreement, (b) any of such Registration Statement has not been declared effective by the Commission on or prior to the date specified for such effectiveness in this Agreement (the "Effectiveness Target Date") (provided this clause (b) shall not be applicable in the event the Holders shall not have provided in a timely manner the information described in Section 4(b) hereof), (c) the Exchange Offer has not been Consummated within 30 business days after the Effectiveness Target Date with respect to the Exchange Offer Registration Statement or (d) any Registration Statement required by this Agreement is filed and declared effective but shall thereafter cease to be effective or fail to be usable for its intended purpose without being succeeded within two business days by a post-effective amendment to such Registration Statement that cures such failure and that is itself immediately declared effective (each such event referred to in clauses (a) through (d), a "Registration Default"), additional cash interest ("Liquidated Damages") shall accrue to each Holder of the notes commencing upon the occurrence of such Registration Default in an amount equal to $.05 per week per $1,000 principal amount of Notes held by such Holder. The amount of Liquidated Damages will increase by an additional $.05 per week per $1,000 principal amount of Notes with respect to each subsequent 90-day period until all Registration Defaults have been cured, up to a maximum amount of Liquidated Damages of $.50 per week per $1,000 principal amount of Notes. All accrued Liquidated Damages shall be paid to Holders by the Company in the same manner as interest is made pursuant to the Indenture. Following the cure of all Registration Defaults relating to any particular Transfer Restricted Securities, the accrual of Liquidated Damages with respect to such Transfer Restricted Securities will cease. All obligations of the Company set forth in the preceding paragraph that have accrued and are outstanding with respect to any Transfer Restricted Security at the time such security ceases to be a Transfer Restricted Security shall survive until such time as all such obligations with respect to such Transfer Restricted Security shall have been satisfied in full. (b) The Company shall notify the Trustee within one business day after each and every date on which an event occurs in respect of which Liquidated Damages are required to be paid (an "Event Date"). Liquidated Damages shall be paid by depositing Liquidated Damages with the Trustee, in trust, for the benefit of the Holders of the Notes, on or before the applicable Interest Payment Date (whether or not any payment other than Liquidated Damages is payable on such Notes), in immediately available funds in sums sufficient to pay the Liquidated Damages then due tosuch Holders. Each obligation to pay Liquidated Damages shall be deemed to accrue from the applicable date of the occurrence of the Registration Default. 6. Registration Procedures. (a) Exchange Offer Registration Statement. In connection with the Exchange Offer, the Company shall comply with all of the provisions of Section 6(b) below, shall use its reasonable best efforts to effect such exchange to permit the sale of Transfer Restricted Securities being sold in -6- accordance with the intended method or methods of distribution thereof, and shall comply with all of the following provisions: (i) As a condition to its participation in the Exchange Offer pursuant to the terms of this Agreement, each Holder of Transfer Restricted Securities shall furnish, upon the request of the Company, prior to the Consummation thereof, a written representation to the Company (which may be contained in the letter of transmittal contemplated by the Exchange Offer Registration Statement) to the effect that (A) it is not an affiliate of the Company, (B) it is not engaged in, and does not intend to engage in, and has no arrangement or understanding with any person to participate in, a distribution of the Exchange Notes to be issued in the Exchange Offer and (C) it is acquiring the Exchange Notes in its ordinary course of business. In addition, all such Holders of Transfer Restricted Securities shall otherwise cooperate in the Company's preparations for the Exchange Offer. Each Holder hereby acknowledges and agrees that any Broker-Dealer and any such Holder using the Exchange Offer to participate in a distribution of the securities to be acquired in the Exchange Offer (1) could not under Commission policy as in effect on the date of this Agreement rely on the position of the Commission enunciated in Morgan Stanley and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the Commission's letter to Shearman & Sterling dated July 2, 1993, and similar no-action letters (including Brown & Wood LLP (available February 7, 1997), and any no-action letter obtained pursuant to clause (i) above), and (2) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with a secondary resale transaction and that such a secondary resale transaction should be covered by an effective registration statement containing the selling security holder information required by Item 507 or 508, as applicable, of Regulation S-K if the resales are of Exchange Notes obtained by such Holder in exchange for Notes acquired by such Holder directly from the Company. (ii) Prior to the effectiveness of the Exchange Offer Registration Statement in the event underwriters are not participating, the Company shall provide a supplemental letter to the Commission (A) stating that the Company is registering the Exchange Offer in reliance on the position of the Commission enunciated in Exxon Capital Holdings Corporation (available May 13, 1988), Morgan Stanley and Co., Inc. (available June 5, 1991), Brown & Wood, LLP (available February 7, 1997) and (B) including a representation that the Company has not entered into any arrangement or understanding with any Person to distribute the Exchange Notes to be received in the Exchange Offer and that, to the best of the Company's information and belief, each Holder participating in the Exchange Offer is acquiring the Exchange Notes in its ordinary course of business and has no arrangement or understanding with any Person to participate in the distribution of the Exchange Notes received in the Exchange Offer. (b) General Provisions. In connection with any Registration Statement and any Prospectus required by this Agreement to permit the sale or resale of Transfer Restricted Securities (including, without limitation, any Registration Statement and the related Prospectus required to permit resales of Notes by Broker-Dealers), the Company shall: -7- (i) upon the occurrence of any event that would cause any such Registration Statement or the Prospectus contained therein (A) to contain a material misstatement or omission or (B) not to be effective and usable for resale of Transfer Restricted Securities during the period required by this Agreement, the Company shall file promptly an appropriate amendment to such Registration Statement, in the case of clause (A), correcting any such misstatement or omission, and, in the case of either clause (A) or (B), use its reasonable best efforts to cause such amendment to be declared effective and such Registration Statement and the related Prospectus to become usable for their intended purpose(s) as soon as practicable thereafter; (ii) prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period set forth in Section 3 or 4 hereof, as applicable, or such shorter period as will terminate when all Transfer Restricted Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act, and to comply fully with the applicable provisions of Rules 424 and 430A under the Securities Act in a timely manner; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; (iii) in the case of a Shelf Registration, advise the lead underwriter to confirm such advice in writing, (A) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to any Registration Statement or any post-effective amendment thereto, when the same has become effective, (B) of any request by the Commission for amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional information relating thereto, (C) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement under the Securities Act or of the suspension by any state securities commission of the qualification of the Transfer Restricted Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for any of the preceding purposes, (D) of the existence of any fact or the happening of any event that makes any statement of a material fact made in the Registration Statement, the Prospectus, any amendment or supplement thereto, or any document incorporated by reference therein untrue, or that requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading; provided, however, this subclause (D) shall not be construed to require the Company to amend or supplement the Registration Statement to the extent such supplemental information is incorporated by reference pursuant to the Company's Exchange Act filings. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, or any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of the Transfer Restricted Securities under state securities or Blue Sky laws, the -8- Company shall use its best efforts to obtain the withdrawal or lifting of such order at the earliest possible time; (iv) in the case of a Shelf Registration, furnish to the lead underwriter before filing with the Commission, copies of any Registration Statement or any Prospectus included therein or any amendments or supplements to any such Registration Statement or Prospectus (including all documents incorporated by reference after the initial filing of such Registration Statement), which documents will be subject to the review of the lead underwriter, for a period of at least two business days, and the Company will not file any such Registration Statement or Prospectus or any amendment or supplement to any such Registration Statement or Prospectus (including all such documents incorporated by reference) to the lead underwriter shall reasonably object within two (2) business days after the receipt thereof. The lead underwriter shall be deemed to have reasonably objected to such filing if such Registration Statement, amendment, Prospectus or supplement, as applicable, as proposed to be filed, contains a material misstatement or omission; (v) in the case of a Shelf Registration and prior to the effectiveness of the same, make available at reasonable times for inspection by the lead underwriter participating in any disposition pursuant to such Registration Statement, and any attorney or accountant retained by the lead underwriter, all financial and other records, pertinent corporate documents and properties of the Company and cause the Company's officers, directors, managers and employees to supply all information reasonably requested by the lead underwriter and its attorney or accountant in connection with customary "due diligence"; (vi) in the case of a Shelf Registration, furnish to the lead underwriter without charge, at least one copy of the Registration Statement, as first filed with the Commission, and of each amendment thereto, and all exhibits thereto (exclusive of any exhibits incorporated therein by reference); (vii) in the case of a Shelf Registration, deliver to the lead underwriter and the Holders without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons reasonably may request; subject to the terms hereof the Company hereby consents to the use of the Prospectus and any amendment or supplement thereto by the underwriter(s) if any, in connection with the offering and the sale of the Transfer Restricted Securities covered by the Prospectus or any amendment or supplement thereto; (viii) in the case of a Shelf Registration which is underwritten, the Company shall: (A) upon request, furnish to the lead underwriter in such substance and scope as may be mutually agreeable to the lead underwriter and the Company the following described items which are customarily provided by issuers to underwriters in primary underwritten offerings, upon the date of the effectiveness of the Shelf Registration Statement: -9- (1) a certificate, dated the date of the effectiveness of the Shelf Registration Statement, signed by (y) the Chairman of the Board, its President or a Vice President and (z) the Chief Financial Officer of the Company, confirming, as of the date thereof, such matters as shall be mutually agreeable to the lead underwriter and the Company and which are customarily provided by issuers to underwriters in primary underwritten offerings; (2) an opinion, dated the date of the effectiveness of the Shelf Registration Statement, of counsel for the Company, covering such matters as such parties may reasonably request, and in any event including a statement to the effect that such counsel has participated in such conferences as such counsel shall deem necessary in connection with the preparation of such Registration Statement and the related Prospectus and have considered the matters required to be stated therein and the statements contained therein, although such counsel has not independently verified the accuracy, completeness of fairness of such statements; and that such counsel advises that, on the basis of the foregoing (relying as to materiality to a large extent upon facts provided to such counsel by officers and other representatives of the Company and without independent check or verification), no facts came to such counsel's attention that caused such counsel to believe that the applicable Registration Statement, at the time such Registration Statement or any post-effective amendment thereto became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus contained in such Registration Statement as of its date, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Without limiting the foregoing, such counsel may state further that such counsel assumes no responsibility for, and has not independently verified, the accuracy, completeness or fairness of the financial statement, notes and schedules and other financial data included in any Registration Statement contemplated by this Agreement or the related Prospectus and shall take such other exceptions and make such qualifications as are customarily taken or made with respect to such an opinion; and -10- (3) a customary comfort letter, dated the date of the effectiveness of the Shelf Registration Statement, from the Company's independent accountants, in the customary form and covering matters of the type customarily covered in comfort letters by underwriters in connection with primary underwritten offerings. (B) deliver such other documents and certificates as may be mutually agreeable to the lead underwriter and the Company and which are customarily provided by issuers to underwriters in primary underwritten offerings to evidence compliance with clause (A) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company pursuant to this clause (viii); if any. (ix) in the case of a Shelf Registration, prior to any public offering of Transfer Restricted Securities, cooperate with the lead underwriter and its counsel in connection with the registration and qualification of the Transfer Restricted Securities under the securities or Blue Sky laws of such jurisdictions as the lead underwriter may reasonably request and do any and all other acts or things necessary to advisable or enable the disposition in such jurisdictions of the Transfer Restricted Securities covered by the Shelf Registration Statement; provided, however, that the Company shall not be required to register or qualify as a foreign corporation where it is not now so qualified or to take any action that would subject it to the service of process in suits or to taxation, other than as to matters and transactions relating to the Registration Statement, in any jurisdiction where it is not now so subject; (x) in the case of a Shelf Registration, shall issue, upon the request of any Holder of Notes covered by the Shelf Registration Statement, Exchange Notes in the same amount as the Notes surrendered to the Company by such Holder in exchange therefor or being sold by such Holder; such Exchange Notes to be registered in the name of such Holder or in the name of the purchaser(s) of such Exchange Notes, as the case may be; in return, the Notes held by such Holder shall be surrendered to the Company for cancellation; (xi) in the case of a Shelf Registration, cooperate with the selling Holders and the lead underwriter to facilitate the timely preparation and delivery of certificates representing Transfer Restricted Securities to be sold and not bearing any restrictive legends; and enable such Transfer Restricted Securities to be in such denominations and registered in such names as the Holders or the underwriters may request (subject to the terms and conditions of the Indenture) at least two business days prior to any sale of Transfer Restricted Securities made by such underwriter(s); (xii) use its best efforts to cause the Transfer Restricted Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary (solely with respect to the Company) to enable -11- the seller or sellers thereof or the underwriter(s), if any, to consummate the disposition of such Transfer Restricted Securities, subject to the proviso contained in clause (ix) above; (xiii) if any fact or event contemplated to clause (b)(iii)(D) above shall exist or have occurred, prepare a supplement or post-effective amendment to the Registration Statement or related Prospectus (to the extent such information has not already been disseminated pursuant to the Company's Exchange Act filings) any document incorporated therein by reference or file any other required documents so that, as thereafter delivered to the purchasers of Transfer Restricted Securities, the Prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading; (xiv) provide CUSIP numbers for all Transfer Restricted Securities not later than the effective date of the Registration Statement as well as take such actions consistent with the terms and conditions of the Indenture to deliver either certificated or book-entry Notes; (xv) otherwise use its best efforts to comply with all applicable rules and regulations of the Commission, and make generally available to its security holders, as soon as practicable such financial information as is required by the Indenture; (xvi) cause the Indenture to be qualified under the TIA not later than the effective date of the first Registration Statement required by this Agreement, and, in connection therewith, cooperate with the Trustee and the Holders of Notes to effect such changes to the Indenture as may be required for such Indenture to be so qualified in accordance with the terms of the TIA (notwithstanding anything contained in this clause (xvi) the Holders shall obligate themselves to cooperate with the Company to the extent necessary to cause the Indenture to be qualified under the TIA); and execute and use its best efforts to cause the Trustee to execute all documents that may be required to effect such changes and all other forms and documents required to be filed with the Commission to enable such Indenture to be so qualified in a timely manner; and (xvii) provide promptly to each Holder upon request each document filed with the Commission pursuant to the requirements of Section 13 and Section 15 of the Exchange Act. Each Holder agrees by acquisition of a Transfer Restricted Security that, upon receipt of any notice from the Company of the existence of any fact of the kind described in Section 6(b)(iii)(D) hereof, such Holder will forthwith discontinue disposition of Transfer Restricted Securities pursuant to the applicable Registration Statement until such Holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(b)(xiii) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings that are incorporated by reference in the Prospectus. If so directed by the Company, each Holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Holder's possession, of the Prospectus covering such Transfer Restricted Securities that was current at the time of receipt of such notice. In the event the Company shall give any such notice, the time period regarding the -12- effectiveness of such Registration Statement set forth in Section 3 or 4 hereof, as applicable, shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(b)(iii)(D) hereof to and including the date when each selling Holder covered by such Registration Statement shall have received the copies of the supplemented or amended Prospectus contemplated by Section 6(b)(xiii) hereof or shall have received the Advice. 7. Registration Expenses. All reasonable expenses incident to the Company's performance of or compliance with this Agreement will be borne by the Company, regardless of whether a Registration Statement becomes effective, including without limitation: (i) all registration and filing fees and expenses; (ii) all fees and expenses of compliance with federal securities and state Blue Sky or securities laws; (iii) all expenses of printing (including printing certificates for the Exchange Notes to be issued in the Exchange Offer and printing of Prospectuses), and associated messenger and delivery services and telephone; (iv) all fees and disbursements of counsel for the Company; (v) all application and filing fees in connection with listing Notes on a national securities exchange or automated quotation system; and (vi) all fees and disbursements of independent certified public accountants of the Company (including the expenses of any special audit and comfort letters required by or incident to such performance). The Company will, in any event, bear its internal expenses (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), the expenses of any annual audit and the fees and expenses of any Person, including special experts, retained by the Company. 8. Indemnification and Contribution. (a) In connection with a Shelf Registration Statement or in connection with any delivery of a Prospectus contained in an Exchange Offer Registration Statement by any participating Broker- Dealer or Initial Purchaser, as applicable, who seeks to sell Exchange Notes, the Company and AT&T Capital shall jointly and severally indemnify and hold harmless each Holder of Transfer Restricted Securities included within any such Shelf Registration Statement and each participating Broker-Dealer or Initial Purchaser selling Exchange Notes, and each person, if any, who controls any such person within the meaning of Section 15 of the Securities Act (each, a "Participant") from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof (including, but not limited to, any loss, claim, damage, liability or action relating to purchases and sales of Notes) to which such Participant or controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in any such Registration Statement or any prospectus forming part thereof or in any amendment or supplement thereto or (ii) the omission or alleged omission to state therein in a material fact required to be stated therein or necessary to make the statements therein not misleading, and shall reimburse each participant promptly upon demand for any legal or other expenses reasonably incurred by such Participant in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that -13- (i) neither the Company nor AT&T Capital shall be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in any such Registration Statement or any prospectus forming part thereof or in any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company or AT&T Capital by or on behalf of any Participant specifically for inclusion therein; and provided further that as to any preliminary Prospectus, the indemnity agreement contained in this Section 8(a) shall not inure to the benefit of any such Participant or any controlling person of such Participant on account of any loss, claim, damage, liability or action arising from the sale of the Exchange Notes to any person by that Participant if (i) that Participant failed to send or give a copy of the Prospectus, as the same may be amended or supplemented, to that person within the time required by the Securities Act and (ii) the untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact in such preliminary Prospectus was corrected in the Prospectus, unless, in each case, such failure resulted from non-compliance by the Company with Section 6(c). The foregoing indemnity agreement is in addition to any liability which the Company or AT&T Capital may otherwise have to any Participant or to any controlling person of that Participant. (b) Each Participant, severally and not jointly, shall indemnify and hold harmless the Company and AT&T Capital, its directors, officers, employees or agents and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereto, to which the Company or any such director, officer, employees or agents or controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in any preliminary Prospectus, Registration Statement or Prospectus or in any amendment or supplement thereto or (ii) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company or AT&T Capital by or on behalf of that Participant specifically for inclusion herein, and shall reimburse the Company and any such director, officer, employees or agents or controlling person for any legal or other expenses reasonably incurred by the Company, AT&T Capital or any such director, officer, employees or agents or controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred. The foregoing indemnity agreement is in addition to any liability which any Participant may otherwise have to the Company, AT&T Capital or any such director, officer or controlling person. (c) Promptly after receipt by an indemnified party under this Section 8 or notice of any claim or the commencement of any action, the indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the claim or the commencement of that action; provided, however, that the failure to notify the indemnifying party shall not relieve it from any liability which it may have under this Section 8 except to the extent it has been materially prejudiced by such failure and, provided further, that the failure to notify the indemnifying party shall not relieve it from any liability which it may have to -14- an indemnified party otherwise than under this Section 8. If any such claim or action shall be brought against any indemnified party, and it shall have notified the indemnifying party thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel satisfactory to the indemnified party. After notice from the indemnifying party to the indemnified party of its election to assume the defense of such claim or action, the indemnifying party shall not be liable to the indemnified party under this Section 8 for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided, however, that the indemnified party shall have the right to employ counsel to represent jointly the indemnified party and those other Participants and its respective officers, employees and controlling persons who may be subject to liability arising out of any claim in respect of which indemnity may be sought by the Participants against the indemnifying party under this Section 8 if, in the reasonably judgment of the indemnified party it is advisable for the indemnified party and those Participants, officers, employees and controlling persons to be jointly represented by separate counsel, and in that event the fees and expenses of such separate counsel shall be paid by the indemnifying party. In no event shall the indemnifying parties be liable for the fees and expenses of more than one counsel (in addition to local counsel where required). Each indemnified party, as a condition of the indemnity agreements contained in Section 8, shall use its best efforts to cooperate with the indemnifying party in the defense of any such action or claim. No indemnifying party shall (i) without the prior written consent of the indemnified parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceedings, or (ii) be liable for any settlement of any such action effected without its written consent (which consent shall not be unreasonably withheld), but if settled with its written consent or if there be a final judgment of the plaintiff in any such action, the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such settlement or judgment. (d) If the indemnification provided for in this Section 8 shall for any reason be unavailable to or insufficient to hold harmless an indemnified party under Section 8(a) or 8(b) in respect of any loss, claim, damage or liability, or any action in respect thereof, referred to therein, then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, damage or liability, or action on respect thereto, in such proportion as shall be appropriate to reflect the relative fault of the Company and AT&T Capital on the one hand and the Participants on the other with respect to the statements or omissions which resulted in such loss, claim, damage or liability, or action in respect thereof, as well as any other relevant equitable considerations. The relative fault shall be determined by reference to whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company, AT&T Capital or the Participants, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company, AT&T Capital and the Participants agree that it would not be just and equitable if contributions pursuant -15- to this Section 8(d) were to be determined by pro rata allocation (even if the Participants were treated as one entity for such purposes) or by any other method of allocation which does not take into account the equitable considerations referred to herein. The amount paid or payable by an indemnified party as a result of the loss, claim, damage or liability, or action in respect thereof, referred to above in this Section 8(d) shall be deemed to include, for purposes of this Section 8(d), any reasonable legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8(d), no Participant shall be required to contribute any amount in excess of the amount by which proceeds received by such participant from an offering of the Notes exceeds the amount of any damages which such Participant has otherwise paid or become liable to pay by reason of any untrue or alleged untrue statement or omission or alleged omission. (e) No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to indemnification or contribution from any person who was not guilty of such fraudulent misrepresentation. The Participants' obligations to indemnify and contribute as provided in this Section 8 are several and not joint. 9. Participation in Underwritten Registrations. No Holder may participate in any Underwritten Registration hereunder unless such Holder (a) agrees to sell such Holder's Transfer Restricted Securities on the basis provided in any underwriting arrangements approved by the Persons entitled hereunder to approve such arrangements and (b) completes the executes all reasonable questionnaires, powers of attorney, indemnities, underwriting agreements, lock-up letters and other documents required under the terms of such underwriting arrangements. 10. Selection of Underwriters. The Holders of Transfer Restricted Securities covered by the Shelf Registration Statement who desire to do so may sell such Transfer Restricted Securities in an Underwritten Offering. In any such Underwritten Offering, the investment banker or investment bankers and manager or managers that will administer the offering will be selected by the Company. 11. Miscellaneous. (a) Remedies. The Company and the Holders agree that monetary damages (including Liquidated Damages) would not be adequate compensation for any loss incurred by reason of a breach by either of them of the provisions of this Agreement and hereby agree to waive the defense in any action for specific performance that a remedy at law would be adequate. (b) No Inconsistent Agreements. The Company will not on or after the date of this Agreement enter into any agreement with respect to its securities that is inconsistent with the rights granted to the Holders in this Agreement or otherwise conflicts with the provisions hereof. The rights granted to the Holders hereunder do not in any way conflict with and are not inconsistent with -16- the rights granted to the holders of the Company's securities under any agreement in effect on the date hereof. (c) Adjustments Affecting the Notes. The Company will not take any action, or permit any change to occur, with respect to the terms of the Notes that would materially and adversely affect the ability of the Holders to Consummate any Exchange Offer unless such action or change is required by applicable law. (d) Amendments and Waivers. The provisions of this Agreement may not be amended, modified or supplemented, and waivers or consents to or departures form the provisions hereof may not be given unless the Company has obtained the written consent of Holders of a majority of the outstanding principal amount of Transfer Restricted Securities. Notwithstanding the foregoing, a waiver or consent to departure from the provisions hereof that relates exclusively to the rights of Holders whose securities are being tendered pursuant to the Exchange Offer and that does not affect directly or indirectly the rights of other Holders whose securities are not being tendered pursuant to such Exchange Offer may be given by the Holders of a majority of the outstanding principal amount of transfer Restricted Securities being tendered or registered. In connection with the determination of whether the requisite number of Holders has consented to any such amendment, waiver or supplement, the Company may rely on a list of the names and addresses of such Holders compiled by the Trustee as Registrar and Paying Agent under the Indenture. (e) Notices. All notices and other communications provided for or permitted hereunder shall be made in writing by hand-delivery, first-class mail (registered or certified, return receipt requested), telex, telecopier, or air courier guaranteeing overnight delivery: (i) if to a Holder, at the address of such Holder maintained by the Registrar under the Indenture; and (ii) if to the Company: Glenn A. Votek EVP, Treasurer Newcourt Credit Group Inc. 2 Gatehall Drive Parsippany, New Jersey 07054 Facsimile: (973) 355-7019 with a copy to: Scott Moore, Esq. General Counsel Newcourt Credit Group Inc. 2 Gatehall Drive Parsippany, New Jersey 07054 Facsimile: (973) 355-7058 -17- All such notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five business days after being deposited in the mail, postage prepaid, if mailed; when answered bank, if telexed; when receipt acknowledged, if telecopied, and on the next business day, if timely delivered to an air courier guaranteeing overnight delivery. Copies of all such notices, demands or other communications shall be concurrently delivered by the Person giving the same to the Trustee at the address specified in the Indenture. (f) Successors and Assigns. This Agreement shall inure to the benefit or and be binding upon the successors and assigns of each of the parties, including without limitation and without the need for an express assignment, subsequent Holders of Transfer Restricted Securities; provided, however, that this Agreement shall not inure to the benefit of or be binding upon a successor or assign of a Holder unless and to the extent such successor or assign acquired Transfer Restricted Securities from such Holder. (g) Counterparts. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. (h) Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. (i) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflict of law rules thereof. (j) Severability. In the event that any one or more of the provisions contained herein, or the application thereof in any circumstance is held invalid, illegal or unenforceable, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained herein shall not be affected or impaired thereby. (k) Entire Agreement. This Agreement together with the other transaction documents is intended by the parties as a final expression of their agreement and intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein. There are no restrictions, promises, warranties or undertakings, other than those set forth or refereed to herein with respect to the registration rights granted by the Company with respect to the Transfer Restricted Securities. This Agreement supersedes all prior agreements and understandings between the parties with respect to such subject matter. (l) Required Consents. Whenever the consent or approval of Holders of a specified percentage of Transfer Restricted Securities is required hereunder, Transfer Restricted Securities held by the Company or its affiliates (as such term is defined in Rule 405 under the Securities Act) shall not be counted in determining whether such consent or approval was given by the Holders of such required percentage. -18- IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. NEWCOURT CREDIT GROUP INC. By: /s/ GLENN A. VOTEK ----------------------------- Printed Name: Glenn A. Votek ---------------- Title: Executive Vice President & Treasurer ----------------------- AT&T CAPITAL CORPORATION By: /s/ GLENN A. VOTEK ----------------------------- Printed Name: Glenn A. Votek ---------------- Title: Executive Vice President & Treasurer ----------------------- Accepted as of the date thereof By: LEHMAN BROTHERS INC. By: ----------------------------- Printed Name: ---------------- Title: ----------------------- -19- IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. NEWCOURT CREDIT GROUP INC. By: ----------------------------- Printed Name: ---------------- Title: ----------------------- AT&T CAPITAL CORPORATION By: ----------------------------- Printed Name: ---------------- Title: ----------------------- Accepted as of the date thereof By: LEHMAN BROTHERS INC. By: /s/ HERBERT McDADE ----------------------------- Printed Name: Herbert McDade ---------------- Title: Managing Director ----------------------- -19- EX-4 6 EXHIBIT 4E UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. EXCEPT AS OTHERWISE PROVIDED IN SECTION 2.11 OF THE INDENTURE, THIS SECURITY MAY BE TRANSFERRED, IN WHOLE BUT NOT IN PART, ONLY TO ANOTHER NOMINEE OF THE DEPOSITARY OR TO A SUCCESSOR DEPOSITARY OR TO A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. NO. FXR-1 CUSIP NO. 650905AE2 NEWCOURT CREDIT GROUP INC. EXCHANGE NOTE, SERIES A (FIXED RATE) Original Issue Date: 9/__/1999 Initial Optional Redemption Date: N/A Issue Price: 100% Optional Redemption Price: N/A Interest Rate: 7.125% Annual Redemption Price Reduction: N/A Maturity Date: 12/17/2003 Optional Repayment Date(s): N/A Principal Amount: $300,000,000
Newcourt Credit Group Inc., a corporation organized under the laws of the Province of Ontario (herein referred to as the "Company"), for value received, hereby promises to pay to Cede & Co. or registered assigns, the principal sum of Three Hundred Million Dollars ($300,000,000) on the Maturity Date shown above and to pay interest thereon at the rate per annum shown above until principal hereof is paid or made available for payment. The Company will pay interest semiannually on June 15 and December 15 (each an "Interest Payment Date"),commencing with the Interest Payment Date immediately following the Original Issue Date shown above (except as provided below), and on the Maturity Date shown above. Interest on this Note will accrue from the most recent Interest Payment Date to which interest has been paid or duly provided for or, if no interest has been paid or duly provided for, then from the last interest payment date for the Company's 7.125% Notes, Series A due December 17, 2003 or if no interest had been paid on the Company's 7.125% Notes, Series A due December 17, 2003, prior to the Original Issue Date shown above, then from December 15, 1998. The amount of interest payable on any Interest Payment Date shall be computed on the basis of a year of twelve 30-day months. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture referred to below, be paid to the person in whose name this Note is registered at the close of business on the Record Date for such interest payment date which shall be the May 31 or November 30 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date; provided, however, that interest payable on the Maturity Date (whether or not such date is an Interest Payment Date) shall be payable to the person to whom principal shall be payable, and, if the Original Issue Date of this Note is between a Record Date and the corresponding Interest Payment Date, the first payment of the interest will be made on the Interest Payment Date following the next succeeding Record Date to the person in whose name this Note is registered at the close of business on such Record Date. Payment of the principal of and interest on this Note will be made at the office or agency of the Company maintained for that purpose in the Borough of Manhattan, The City of New York, State of New York, in such coin or currency of the United States of America as at the time of payment shall be legal tender for payment of public and private debts; provided, however, that at the option of the Company payment of interest other than interest due at the Maturity Date shown above may be made by check mailed to the address of the person entitled thereto as such address shall appear in the Security Register. "Business Day" means any day, other than a Saturday or a Sunday, and that is neither a legal holiday nor a day on which banking institutions are authorized or required by law or regulation to close in The City of New York. This note is guaranteed as to payment of principal, premium, if any, and interest by the AT&T Capital Corporation (the "Guarantor"). REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH IN THIS PLACE. This Note shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been executed by the Trustee under the Indenture referred to herein. -2- IN WITNESS WHEREOF, Newcourt Credit Group Inc. has caused this instrument to be duly executed under its corporate seal. Dated: __________________ NEWCOURT CREDIT GROUP INC. By:____________________________ Attest ------------------------------- CERTIFICATE OF AUTHENTICATION This is one of the Certificated Securities of the Series designated therein referred to in the within-mentioned Indenture. THE CHASE MANHATTAN BANK, as Trustee By:_____________________________________ Authorized Officer -3- [REVERSE OF NOTE] This note is one of a duly authorized issue of Securities of the Company (herein referred to as the "Securities"), issued and to be issued in one or more series under and pursuant to an Indenture dated as of December 15, 1998 (as amended, restated or supplemented from time to time, the "Indenture"),between the Company and The Chase Manhattan Bank, as Trustee (the "Trustee"), to which Indenture and all indentures supplemental thereto reference is hereby made for description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holder (the words "Holders" or "Holder" meaning the registered holders or registered holder) of the Securities. This note is one of the series of Securities designated as Exchange Notes, Series A (herein referred to as the "Notes"). The Guarantor has guaranteed the payment of principal, premium, if any, and interest on the Notes and reference is hereby made to the Guarantee dated as of December 15, 1998 by the Guarantor in favor of the Trustee for the benefit of the holders of the Securities for a complete description of the terms of such Guarantee. In case an Event of Default with respect to the Notes, as defined in the Indenture, shall have occurred and be continuing, the principal hereof may be declared, and upon such declaration shall become due and payable in the manner, with the effect and subject to the conditions provided in the Indenture. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the outstanding Securities of each series affected by any such amendment or modification (with each series voting as one class). The Indenture also contains provisions permitting the Holders of not less than a majority in principal amount of the outstanding Securities of each series affected thereby (with each series voting as one class), on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture. The Indenture also provides that, regarding the Securities of any series, the Holders of not less than a majority in principal amount of the outstanding Securities of such series may waive certain past defaults and their consequences on behalf of the Holders of all Securities of such series. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon registration of transfer hereof or in exchange here for or in lieu hereof whether or not notation of such consent or waiver is made upon this Note. The Indenture contains provisions setting forth certain conditions to the institution of proceedings by Holders of Securities with respect to the Indenture or for any remedy under the Indenture. No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Note at the place, at the respective times, at the rate and in the coin or currency herein prescribed. The Notes are issuable as registered Notes without coupons in denominations that are integral multiples of U.S. $1,000. At the office or agency of the Company referred to above and in the manner and subject to the limitations provided in the Indenture, Notes may be exchanged without service charge for a like aggregate principal amount of Notes having the same maturity, interest rate, redemption provisions, repayment provisions, and Original Issue Date of other authorized denominations. Unless the face of this Note indicates that an Optional Redemption Price is applicable to this Note, this Note may not be redeemed prior to the Maturity Date. If the face of this Note indicates that an Optional Redemption Price is applicable to this Note, then this Note may be redeemed at the option of the Company as a whole, or from time to time in part, on or after the Initial Optional Redemption Date specified on the face hereof and prior to the Maturity Date, at the Optional Redemption Price specified on the face hereof (expressed as a percentage of the principal amount) (subject to reduction as hereinafter provided), together in each case with accrued interest to the date fixed for redemption; provided that if the face of this Note indicates that this Note is subject to an "Annual Redemption Price Reduction", then the Optional Redemption Price shall decline at each anniversary of the Initial Optional Redemption Date by the Annual Redemption Price Reduction until the Optional Redemption Price is 100% of such principal amount. Notice of redemption shall be mailed to the registered holders of the Notes designated for -4- redemption at their last registered address not less than thirty nor more than sixty days prior to the date fixed for redemption, all as provided in the Indenture. In the event of redemption of this Note in part only, a new Note or Notes for the amount of the unredeemed portion hereof shall be issued in the name of the holder hereof upon the presentation and cancellation hereof. Unless an Optional Repayment Date or Dates is indicated on the face of this Note, this Note shall not be subject to repayment at the option of the holder prior to the Maturity Date. If an Optional Repayment Date or Dates is indicated on the face of this Note, this Note may be subject to repayment at the option of the holder on the Optional Repayment Date or Dates specified on the face hereof on the terms set forth herein. On any Optional Repayment Date, this Note will be repayable in whole or in part in increments of U.S. $1,000 at the option of the holder hereof at a price equal to 100% of the principal amount to be repaid, together with interest hereon payable to the date of repayment. For this Note to be repaid in whole or in part at the option of the holder hereof, the Company must receive at the corporate trust office of the Trustee in the Borough of Manhattan, The City of New York, at least 30 calendar days but not more than 45 calendar days prior to the date of repayment, (i) this Note with the form entitled "Option to Elect Repayment" on the reverse hereof duly completed or (ii) a telegram, telex, facsimile transmission or a letter from a member of a national securities exchange, the National Association of Securities Dealers, Inc. or a commercial bank or trust company in the United States setting forth the name of the holder of this Note, the principal amount of this Note, the principal amount of this Note to be repaid, the certificate number or description of the tenor and terms of this Note, a statement that the option to elect repayment is being exercised thereby and a guarantee that this Note to be repaid, together with the duly completed form entitled "Option to Elect Repayment" on the reverse hereof, will be received by the Trustee not later than the third Business Day after the date of such telegram, telex, facsimile transmission or letter, and this Note and form duly completed must be received by the Trustee by such third Business Day. Upon due presentment for registration of transfer of this Note at the above-mentioned office or agency of the Company, a new Note or Notes having the same maturity, interest rate, redemption provisions, repayment provisions and Original Issue Date of authorized denominations, for a like aggregate principal amount, will be issued to the transferee as provided in the Indenture. No service charge shall be made for any such transfer, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto. The Company, the Trustee, and any agent of the Company or the Trustee may deem and treat the Holder hereof as the absolute owner hereof (whether or not this Note shall be overdue and notwithstanding any notation of ownership or other writing hereof) for the purpose of receiving payment of or on account of the principal hereof and, subject to the provisions on the face hereof, interest hereon, and for all other purposes, and neither the Company nor the Trustee nor any such agent shall be affected by any notice to the contrary. No recourse shall be had for the payment of the principal of or the interest on this Note, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture or any indenture supplemental thereto, against any incorporator, shareholder, officer or director as such, past, present or future, of the Company, of the Guarantor or of any successor corporations, either directly or through the Company, the Guarantor or any successor corporation, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released. This Note shall be deemed to be a contract made under the laws of the State of New York and for all purposes shall be governed by and construed in accordance with the laws of said State. All terms used in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture. -5- ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM - as tenants in common TEN ENT - as tenants by the entireties JT TEN - as joint tenants with right of survivorship and not as tenants in common
UNIF GIFT MIN ACT - _______________ Custodian ________________ (Cust) (Minor) Under Uniform Gifts to Minor Act _____________________ (State) Additional abbreviations may also be used though not in the above list. -6- FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto [PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE] - ------------------------------------------------------------------------------ - ------------------------------------------------------------------------------ [PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING ZIP CODE, OF ASSIGNEE] - ------------------------------------------------------------------------------ - ------------------------------------------------------------------------------ the within Note and all rights thereunder, hereby irrevocably constituting and appointing such person attorney to transfer such Note on the books of the Company, with full power of substitution in the premises. Dated:__________________________ NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within Note in every particular without alteration or enlargement or any change whatsoever. -7- OPTION TO ELECT REPAYMENT The undersigned hereby irrevocably request(s) and instruct(s) the Company to repay the within Note (or portion thereof specified below) pursuant to its terms at a price equal to the principal amount thereof, together with interest to the Optional Repayment Date, to the undersigned at - ---------------------------------------------------------------- (Please print or typewrite name and address of the undersigned) If less than the entire principal amount of the within Note is to be repaid, specify the portion thereof (which shall be increments of U.S. $1,000) which the holder elects to have repaid: ___________________; and specify the denomination or denominations (which shall be increments of U.S. $1,000) of the Notes to be issued to the holder for the portion of the within Note not being repaid (in the absence of any such specification, one such Note will be issued for the portion not being repaid): ------------------------------------ Date:_______________________ ------------------------------------ NOTICE: The signature on this Option to Elect Repayment must correspond with the name as written upon the face of the within instrument in every particular without alteration or enlargement or any change whatsoever. -8- EX-5 7 EXHIBIT 5A EXHIBIT 5A [NEWCOURT LETTERHEAD] August 12, 1999 The Chase Manhattan Bank as Indenture Trustee on behalf of the holders of the Debt Securities (as defined below) 450 West 33rd Street New York, NY 10001 Re: U.S. $300,000,000 7.125% Exchange Notes, Series A, Due December 17, 2003 Ladies and Gentlemen: I am Corporate Secretary and Counsel to Newcourt Credit Group Inc., a corporation organized under the laws of the Province of Ontario ("NEWCOURT"). This opinion is being delivered in my capacity as an officer of Newcourt and not in my personal capacity. I refer to the Registration Statement on Form F-4 (the "REGISTRATION STATEMENT") being filed by Newcourt and AT&T Capital Corporation, ("AT&T CAPITAL"), with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "SECURITIES ACT"), relating to the registration of Newcourt's U.S. $300,000,000 7.125% Exchange Notes, Series A, Due December 17, 2003 (the "DEBT SECURITIES") guaranteed as to payment of principal, premium, if any, and interest by AT&T Capital. The Debt Securities are to be issued under the Indenture dated as of December 15, 1998 (the "INDENTURE") between Newcourt and The Chase Manhattan Bank, as trustee (the "TRUSTEE"). Newcourt and AT&T Capital intend to offer, upon the terms and subject to the conditions set forth in the Registration Statement, to exchange (the "EXCHANGE OFFER") $1,000 principal amount of the Debt Securities for each $1,000 principal amount of its 7.125% Notes, Series A, Due December 17, 2003 (the "OLD NOTES"), of which $300,000,000 aggregate principal amount is outstanding. This opinion is being delivered to you pursuant to the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act. I am familiar with the proceedings to date with respect to the proposed issuance and delivery of the Debt Securities and have examined such records, documents and questions of law, and satisfied myself as to such matters of fact, as I have considered relevant and necessary as a basis for this opinion. August 12, 1999 Page 2 In my examination, I have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to me as originals, the conformity to original documents of all documents submitted to me as certified or photostatic copies and the authenticity of the originals of such latter documents. In making my examination of documents executed by parties other than Newcourt or AT&T Capital, I have assumed that such parties had the power, corporate or other, to enter into and perform all obligations thereunder and have also assumed the due authorization by all requisite action, corporate or other, and execution and delivery by such parties of such documents and the validity and binding effect thereof. In addition, I have also relied upon the accuracy and completeness of all certificates and other statements, representations, documents, records, financial statements and papers reviewed by me, and the accuracy and completeness of all representations, warranties, schedules and exhibits contained in such documents, with respect to the factual matters set forth therein. Based on the foregoing, I am of the opinion that when (i) the Registration Statement, as finally amended, shall have become effective under the Securities Act and the Indenture shall have been qualified under the Trust Indenture Act of 1939, as amended and (ii) the Debt Securities shall have been duly executed and authenticated as provided in the Indenture and shall have been duly delivered to the holders of the Old Notes in accordance with the terms and conditions of the Exchange Offer, the Debt Securities will constitute legally valid and binding obligations of Newcourt enforceable in accordance with their terms, and entitled to the benefits of the Indenture (subject to the effect of bankruptcy, fraudulent conveyance or transfer, insolvency, reorganization, arrangement, liquidation, conservatorship and moratorium laws and subject to the limitations imposed by other laws and judicial decisions relating to or affecting the rights of creditors generally, to general principles of equity, regardless of whether enforcement is considered in proceedings in equity or at law, and to an implied covenant of good faith and fair dealing). I do not find it necessary for the purposes of this opinion to cover, and accordingly I express no opinion as to, the application of the securities or blue sky laws of the various states to the offer and exchange of the Debt Securities. This opinion is limited to the laws of the province of Ontario and the federal laws of Canada, and I express no opinion with respect to the laws of any state or other jurisdiction. My opinions set forth in this letter are based on the facts in existence and the laws in effect on the date hereof and I expressly disclaim any obligation to update my opinions herein, regardless of whether changes in such facts or laws come to my attention after the delivery hereof. I hereby consent to the filing of this opinion as an Exhibit to the Registration Statement and to all references to me or this opinion included in or made a part of the Registration Statement. In giving such consent, I do not concede that I am an expert within the meaning of August 12, 1999 Page 3 the Securities Act or the rules and regulations thereunder or that this consent is required by Section 7 of the Securities Act. Very truly yours, /s/ John P. Stevenson ------------------------------------------ John P. Stevenson, Corporate Secretary and Counsel to Newcourt Credit Group Inc. EX-5 8 EXHIBIT 5B [WILENTZ GOLDMAN & SPITZER LETTERHEAD] August 12, 1999 The Chase Manhattan Bank as Indenture Trustee on behalf of the holders of the Exchange Notes (as defined below) 450 West 33rd Street New York, New York 10001 RE: U.S.$300,000,000 7.125% EXCHANGE NOTES, SERIES A, DUE DECEMBER 17, 2003 Ladies and Gentlemen: We have acted as special counsel to Newcourt Credit Group Inc., an Ontario corporation ("Newcourt"), and AT&T Capital Corporation, a Delaware corporation ("AT&T Capital"), for purposes of rendering the opinions hereinbelow set forth. We refer to the Registration Statement on Form F-4 (the "Registration Statement") being filed by Newcourt and AT&T Capital with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Securities Act"), relating to the registration of Newcourt's U.S.$300,000,000 7.125% Exchange Notes, Series A, Due December 17, 2003 (the "Exchange Notes") guaranteed as to payment of principal, premium, if any, and interest by AT&T Capital pursuant to the Guarantee dated as of December 15, 1998 (the "Guarantee") issued by AT&T Capital in favor of The Chase Manhattan Bank, as trustee (the "Trustee"). The Exchange Notes are to be issued under the Indenture dated as of December 15, 1998 (the "Indenture") between Newcourt and the Trustee. Newcourt and AT&T Capital intend to offer, upon the terms and subject to the conditions set forth in the Registration Statement, to exchange (the "Exchange Offer") $1,000 principal amount of the Exchange Notes for each $1,000 principal amount of its 7.125% Notes, Series A, Due December 17, 2003 (the "Old Notes"), of which $300,000,000 aggregate principal amount is outstanding. [WILENTZ GOLDMAN & SPITZER LOGO] The Chase Manhattan Bank August 12, 1999 Page 2 This opinion is being delivered to you pursuant to the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act. In connection with rendering this opinion, we have examined (i) an executed copy of the Indenture, (ii) the form of the Exchange Notes and (iii) the form of Guarantee (the documents described in clauses (i) through (iii) above are collectively hereinafter referred to as the "Documents"), and we have made such further investigation of fact and law as we deemed necessary and appropriate. In our examination, we have assumed the legal capacity of all natural persons, the conformity to original documents of all documents submitted to us as certified or photostatic copies and the authenticity of the originals of such latter documents. In rendering this opinion, we have assumed that all parties executing the Documents have the power, corporate or other, to enter into and perform all obligations thereunder and have also assumed the due authorization by all requisite action, corporate or other, authentication, to the extent required by the terms of the Documents, and due execution and delivery by such parties of such Documents. We have assumed that Canadian Law (as hereinafter defined) to the extent applicable to the execution, delivery, issuance, offering and/or sale of the Exchange Notes, the Guarantee and/or the Indenture has been compiled with. As to any facts material to the opinions expressed herein which we did not independently establish or verify, we have relied upon the accuracy and completeness of the representations of Newcourt and AT&T Capital contained in the documents reviewed by us. Additionally, we have assumed that at the time of the issuance of the Exchange Notes, the Registration Statement, as finally amended, shall have been declared effective under the Securities Act of 1933, as amended (the "Securities Act") and no stop order suspending the effectiveness of the Registration Statement shall be in effect and no proceeding for that purpose shall have been initiated or threatened by the Securities and Exchange Commission and any prospectus or prospectus supplement required to be delivered to a purchaser thereof pursuant to the Securities Act shall have been duly delivered. We have further assumed that at the time of the issuance of the Exchange Notes, the Indenture shall have been qualified under the Trust Indenture Act of 1939, as amended. Notwithstanding anything contained herein to the contrary, no assumption or limitation hereinafter set forth in this opinion shall be construed to limit or otherwise affect any assumptions or limitations hereinbefore set forth in this opinion. Based upon the foregoing, and subject to the assumptions, qualifications, and limitations set forth herein, we are of the opinion that, when the Exchange Notes have been duly executed, delivered and authenticated as specified in the Indenture and delivered against payment therefor in accordance with the terms and conditions of the Exchange Offer: (i) the Exchange Notes will constitute valid and binding obligations of Newcourt enforceable in accordance with their terms; and [WILENTZ GOLDMAN & SPITZER LOGO] The Chase Manhattan Bank August 12, 1999 Page 3 (ii) the Guarantee will constitute the valid and binding obligation of AT&T Capital enforceable in accordance with its terms. The foregoing opinions are subject to the effect of bankruptcy, fraudulent conveyance or transfer, insolvency, reorganization, arrangement, liquidation, conservatorship and moratorium laws and subject to the limitations imposed by other laws and judicial decisions relating to or affecting the rights of creditors generally, to general principles of equity, regardless of whether enforcement is considered in proceedings in equity or at law, and to an implied covenant of good faith and fair dealing. The opinions set forth in this letter are limited to the laws of the State of New York. In addition, without limiting the foregoing sentence, we express no opinion as to (i) the laws of Canada, its provinces or any political subdivision thereof ("Canadian Law"), (ii) compliance by any party with the provisions of the United States federal securities laws, including the Securities Act, applicable to the issuance, offer and/or sale of any of the Exchange Notes or the Guarantee and (iii) the application of the securities or blue sky laws of the various states to the issuance, offer and/or sale of the Exchange Notes or the Guarantee or compliance by any party therewith. This opinion letter is rendered as of the date hereof and we undertake no, and disclaim any, obligation to advise you of any changes in any matter set forth herein, regardless of whether changes in such matters come to our attention after the date hereof. We hereby consent to the filing of this opinion as an Exhibit to the Registration Statement and to all references to this firm or this opinion included in or made a part of the Registration Statement. In giving such consent, we do not concede that we are experts within the meaning of the Securities Act or the rules and regulations thereunder or that this consent is required by Section 7 of the Securities Act. Except as set forth in the preceding sentence, this opinion may not be quoted, filed with any governmental authority or other regulatory agency or otherwise circulated or relied upon by other than the addressee hereof or for any other purpose without out prior written consent. Very truly yours, /s/ WILENTZ, GOLDMAN & SPITZER, P.A. EX-5 9 EXHIBIT 5C EXHIBIT 5C [AT&T CAPITAL LETTERHEAD] August 12, 1999 The Chase Manhattan Bank as Indenture Trustee on behalf of the holders of the Debt Securities (as defined below) 450 West 33rd Street New York, NY 10001 Re: U.S. $300,000,000 7.125% Exchange Notes, Series A, Due December 17, 2003 Ladies and Gentlemen: I am Assistant General Counsel-Treasury to AT&T Capital Corporation, a corporation organized under the laws of the State of Delaware ("AT&T CAPITAL"). This opinion is being delivered in my capacity as an officer of AT&T Capital and not in my personal capacity. I refer to the Registration Statement on Form F-4 (the "REGISTRATION STATEMENT") being filed by Newcourt Credit Group Inc.("NEWCOURT") and AT&T Capital, with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "SECURITIES ACT"), relating to the registration of Newcourt's U.S. $300,000,000 7.125% Exchange Notes, Series A, Due December 17, 2003 (the "DEBT SECURITIES") guaranteed (the "GUARANTEES") as to payment of principal, premium, if any, and interest by AT&T Capital pursuant to the Guarantee dated as of December 15, 1998 (the "GUARANTEE") issued by AT&T Capital in favor of The Chase Manhattan Bank, as trustee (the "TRUSTEE"). The Debt Securities are to be issued under the Indenture dated as of December 15, 1998 (the "INDENTURE") between Newcourt and the Trustee. Newcourt and AT&T Capital intend to offer, upon the terms and subject to the conditions set forth in the Registration Statement, to exchange (the "EXCHANGE OFFER") $1,000 principal amount of the Debt Securities for each $1,000 principal amount of its 7.125% Notes, Series A, Due December 17, 2003 (the "OLD NOTES"), of which $300,000,000 aggregate principal amount is outstanding. This opinion is being delivered to you pursuant to the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act. I am familiar with the proceedings to date with respect to the proposed issuance and delivery of the Debt Securities and the Guarantees and have examined such records, documents and questions of law, and satisfied myself as to such matters of fact, as I have considered relevant and necessary as a basis for this opinion. August 12, 1999 Page 2 In my examination, I have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to me as originals, the conformity to original documents of all documents submitted to me as certified or photostatic copies and the authenticity of the originals of such latter documents. In making my examination of documents executed by parties other than Newcourt or AT&T Capital, I have assumed that such parties had the power, corporate or other, to enter into and perform all obligations thereunder and have also assumed the due authorization by all requisite action, corporate or other, and execution and delivery by such parties of such documents and the validity and binding effect thereof. In addition, I have also relied upon the accuracy and completeness of all certificates and other statements, representations, documents, records, financial statements and papers reviewed by me, and the accuracy and completeness of all representations, warranties, schedules and exhibits contained in such documents, with respect to the factual matters set forth therein. Based on the foregoing, I am of the opinion that when (i) the Registration Statement, as finally amended, shall have become effective under the Securities Act and the Indenture shall have been qualified under the Trust Indenture Act of 1939, as amended and (ii) the Debt Securities shall have been duly executed and authenticated as provided in the Indenture and shall have been duly delivered to the holders of the Old Notes in accordance with the terms and conditions of the Exchange Offer, the Guarantees will constitute legally valid and binding obligations of AT&T Capital enforceable in accordance with the terms of the Guarantee (subject to the effect of bankruptcy, fraudulent conveyance or transfer, insolvency, reorganization, arrangement, liquidation, conservatorship and moratorium laws and subject to the limitations imposed by other laws and judicial decisions relating to or affecting the rights of creditors generally, to general principles of equity, regardless of whether enforcement is considered in proceedings in equity or at law, and to an implied covenant of good faith and fair dealing). I do not find it necessary for the purposes of this opinion to cover, and accordingly I express no opinion as to, the application of the securities or blue sky laws of the various states to the offer and exchange of the Debt Securities. This opinion is limited to the laws of the United States of America and Delaware corporate law, and I express no opinion with respect to the laws of any state or other jurisdiction. I hereby inform you that I am admitted to practice law only in the State of New Jersey. My opinions set forth in this letter are based on the facts in existence and the laws in effect on the date hereof and I expressly disclaim any obligation to update my opinions herein, regardless of whether changes in such facts or laws come to my attention after the delivery hereof. August 12, 1999 Page 3 I hereby consent to the filing of this opinion as an Exhibit to the Registration Statement and to all references to me or this opinion included in or made a part of the Registration Statement. In giving such consent, I do not concede that I am an expert within the meaning of the Securities Act or the rules and regulations thereunder or that this consent is required by Section 7 of the Securities Act. Very truly yours, /s/ Eric S. Mandelbaum ---------------------------------- Eric S. Mandelbaum Assistant General Counsel-Treasury to AT&T Capital Corporation EX-8 10 EXHIBIT 8A EXHIBIT 8A [SIDLEY & AUSTIN LETTERHEAD] August 12, 1999 Newcourt Credit Group Inc. Newcourt Centre 207 Queens Quay West Suite 700 Toronto, Ontario, Canada M5J 1A7 AT&T Capital Corporation 2 Gatehall Drive Parsippany, New Jersey 07054 The Chase Manhattan Bank as Indenture Trustee on behalf of the holders of the 7.125% Exchange Notes, Series A 450 West 33rd Street New York, New York 10001 Re: Registration Statement on Form F-4 Registration No. 333-78869 ---------------------------------- Dear Ladies and Gentlemen: You have requested our opinion as to the material United States federal income tax consequences expected to result to holders from the exchange of 7.125% Notes, Series A for 7.125% Exchange Notes, Series A of Newcourt Credit Group Inc. pursuant to an exchange offer as set forth in the Prospectus (the "Prospectus") included in Amendment No. 1 to the referenced Registration Statement on Form F-4 and exhibits thereto filed with the Securities and Exchange Commission (as amended, the "Registration Statement"). Capitalized terms not defined herein shall have the meanings ascribed to them in the Prospectus. Based on the facts as set forth in the Prospectus, it is our opinion that the material United States federal income tax consequences expected to result to holders whose 7.125% Notes, Series A are exchanged for 7.125% Exchange Notes, Series A in the exchange offer, under currently applicable law, are as stated under the caption "United States Federal Income Tax Considerations" in the Prospectus included in the Registration Statement. This opinion expresses our view as to the federal income tax laws in effect as of the date hereof, including the Internal Revenue Code of 1986, as amended, applicable Treasury Regulations promulgated thereunder, judicial authority and current administrative rulings and practice of the Internal Revenue Service, all of which are subject to change either prospectively or retroactively. Also, any variation or difference in the facts as incorporated herein might affect the conclusion stated herein. We consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not consider that we are "experts", within the meaning of the term as used in the Securities Act or the rules and regulations of the Securities and Exchange Commission issued thereunder, with respect to any part of the Registration Statement, including this opinion as an exhibit or otherwise. We express no opinion as to the laws of any jurisdiction other than the federal income tax laws of the United States of America, nor do we express any opinion, either implicitly or otherwise, on any issue not expressly addressed above. Very truly yours, /s/ Sidley & Austin EX-8 11 EXHIBIT 8B EXHIBIT 8B [BLAKE, CASSELS & GRAYDON LETTERHEAD] 25, Commerce Court West Toronto, Ontario, Canada M5L 1A9 Deliveries: 28th floor Telephone: (416) 863-2400 Facsimile: (416) 863-2653 http://www.blakes.ca Reference: 56294/187 August 12, 1999 Newcourt Credit Group Inc. Newcourt Centre 207 Queens Quay West Suite 700 Toronto, Ontario M5J 1A7 The Chase Manhattan Bank as Indenture Trustee on behalf of the holders of the Replacement Notes (as defined below) 450 West 33rd Street New York, New York 10001 Dear Ladies and Gentlemen: Re: Issue of U.S.$300,000,000 7.125% Exchange Notes, Series A Due December 17, 2003 ------------------------------------------------------------------------------- We have acted as special Canadian tax counsel to Newcourt Credit Group Inc., an Ontario corporation ("Newcourt" or the "Corporation") in connection with Newcourt's offer, pursuant to a prospectus dated the date hereof (the "Prospectus"), to replace $300,000,000 aggregate principal amount of 7.125% Notes, Series A due December 17, 2003 (the "Notes") issued pursuant to an Offering Memorandum dated December 15, 1998 (the "Offering Memorandum") with U.S.$300,000,000 aggregate principal amount of 7.125% Exchange Notes, Series A due December 17, 2003 (the "Replacement Notes"). The Replacement Notes are not being offered to residents of Canada. All capitalized terms used and not otherwise defined herein shall have the respective meanings set forth in the Offering Memorandum. As special Canadian tax counsel to the Corporation, we have reviewed the Prospectus and have participated, to the extent necessary in that capacity, together with Winston & Strawn, counsel to the Initial Purchasers, in the preparation of the following documents: (a) the Trust Indenture dated as of December 15, 1998 between the Corporation and The Chase Manhattan Bank, as trustee; (b) the Offering Memorandum; and (c) a resolution of the Executive Committee of the Board of Directors of the Corporation dated December 15, 1998 which, inter alia, authorizes the Corporation to borrow money by the issue and sale of the Series A Notes. We have also reviewed an executed copy of, but not participated in the preparation of, the following documents: BLAKE, CASSELS & GRAYDON PAGE 2 (i) the Purchase Agreement dated December 8, 1998 among the Corporation, AT&T Capital Corporation and Lehman Brothers Inc., as representative of the Initial Purchasers; and (ii) the Registration Rights Agreement dated as of December 15, 1998 among the Corporation, AT&T Capital Corporation and Lehman Brothers Inc., as representative of the Initial Purchasers. For the purposes of the opinion set forth below, we have assumed with respect to all documents examined by us, the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity to authentic original documents of all documents submitted to us as certified, conformed, telecopied or photostatic copies. In delivering the opinion set forth below, we have relied upon a reliance letter dated the date hereof and a letter of opinion dated December 15, 1998 from Winston & Strawn, and addressed to us and to the Corporation, respectively. Furthermore, in delivering our opinion, we have relied upon the current provisions of the Income Tax Act (Canada) (the "Tax Act"), the regulations thereunder (the "Regulations") and the Canada-United States Income Tax Convention, 1980 (the "Convention"), in force as at the date hereof, all specific proposals to amend the Tax Act and the Regulations publicly announced by the Department of Finance (Canada) prior to the date hereof and our understanding as to changes to such proposals which will be recommend by the Department of Finance (Canada) (the "Proposed Amendments") and our understanding of the published administrative and assessing practices of Revenue Canada, Customs, Excise & Taxation as at the date hereof. However, there can be no assurance that the Proposed Amendments will be enacted in the form proposed or at all. Except for the Proposed Amendments, the opinion set forth below does not take into account or anticipate any changes in law or administrative practice, whether by legislative, governmental or judicial action, which may occur on or after the date hereof, nor does it take into account Canadian provincial or territorial or any non-Canadian tax considerations, which may differ significantly from those discussed herein. The opinion set forth below applies only to a person (a "Holder") who acquires Replacement Notes pursuant to the Prospectus in replacement of Notes acquired pursuant to the Offering Memorandum and who, for purposes of the Tax Act and the Convention and at all relevant times, is resident in the United States and not resident or deemed to be resident in Canada, deals at arm's length with the Corporation, holds Replacement Notes as capital property, does not use or hold and is not deemed to use or hold Replacement Notes in or in the course of carrying on a business in Canada and, in the case of such a person who carries on an insurance business in Canada and elsewhere, establishes that the Replacement Notes are not effectively connected with its Canadian insurance business. BLAKE, CASSELS & GRAYDON PAGE 3 The opinion hereafter expressed is limited to the laws of the Province of Ontario and the federal laws of Canada applicable therein. Based and relying on the foregoing and subject to the qualifications expressed herein and in the Prospectus, we are of the opinion that, as at the date hereof, the statements contained in the section of the Prospectus titled "Canadian Federal Income Tax Considerations", to the extent that they concern matters of Canadian federal income tax law, are correct in all material respects. We consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not consider that we are "experts", within the meaning of the term as used in the Securities Act or the rules and regulations of the Securities and Exchange Commission issued thereunder, with respect to any part of the Registration Statement, including this opinion as an exhibit or otherwise. This opinion letter is addressed to you solely for your benefit in connection with the replacement of the Notes with the Replacement Notes further to the Prospectus and is limited in all respects to (i) the specific issues addressed herein, and (ii) laws and interpretations thereof existing on the date hereof. We do not undertake to update this opinion to account for changes in such laws or interpretations on or after the date hereof. This opinion may be relied upon by you solely in connection with the transactions contemplated herein and is not to be relied upon by any other person or for any other purpose. Yours very truly, /s/ BLAKE, CASSELS & GRAYDON EX-10 12 EXHIBIT 10 $300,000,000 7.125% NOTES DUE DECEMBER 17, 2003 OF NEWCOURT CREDIT GROUP INC. PURCHASE AGREEMENT December 8, 1998 Lehman Brothers Inc., as Representative of the Several Initial Purchasers named in Schedule I hereof Three World Financial Center New York, New York 10285 Ladies and Gentlemen: Each of the undersigned, Newcourt Credit Group Inc. ("Newcourt" or the "Company") and its indirect wholly-owned subsidiary, AT&T Capital Corporation ("AT&T Capital"), hereby confirms its agreement (this "Agreement") with you as the Representative of the Purchasers named in Schedule 1 hereof (hereinafter collectively referred to herein as the "Initial Purchasers") concerning the sale of the Notes as follows: 1. Description of Notes. Newcourt proposes to issue $300,000,000 principal amount of its Notes, Series A due December 17, 2003 (the "Notes") under an Indenture dated as of December 15, 1998, (as amended, restated or supplemented from time to time, the "Indenture"), between Newcourt and The Chase Manhattan Bank, Trustee (the "Trustee"). The Notes will contain the terms set forth on Schedule II hereto. The Notes will be guaranteed as to payment of principal, premium, if any, and interest pursuant to the guarantee dated as of December 15, 1998 made by AT&T Capital to the Trustee (the "Guarantee"). The Notes will be offered without being registered under the Securities Act of 1933, as amended (the "Securities Act"), in reliance on exemptions therefrom. The term "Memorandum" means the final offering memorandum relating to the Notes and the Guarantee. The Notes and the Guarantee are more fully described in the Memorandum. On the Closing Date, the parties hereto will execute and deliver the Registration Rights Agreement (the "Registration Rights Agreement") relating to the Notes, substantially in the form attached hereto as Exhibit A. 2. Representations and Warranties of the Company. The Company and AT&T Capital jointly and severally represent and warrant to the several Initial Purchasers that: (a) The Memorandum at the Closing Date, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this Section 2(a) do not apply to statements or omissions in the Memorandum based upon information furnished to Newcourt or AT&T Capital in writing by an Initial Purchaser through the Representative specifically for use therein ("Provided Information"). Reference herein to the Memorandum shall be deemed to refer to and include any document filed by Newcourt or AT&T Capital under the Securities Exchange Act of 1934, as amended (the "Exchange Act") on or before the Closing Date, which is incorporated in the Memorandum by reference. (b) Assuming the offer, issue, sale and delivery of the Notes occurs in the manner and under the circumstances contemplated in this Agreement and the Memorandum, the Notes are exempt from the registration requirements of Section 5 of the Securities Act pursuant to Section 4(2) of the Act, and it is not required by applicable law or regulation to qualify the Indenture in respect of the Notes under the Trust Indenture Act of 1939, as amended. (c) Ernst & Young and Arthur Andersen LLP, who have certified or shall certify certain financial statements of Newcourt and AT&T Capital, whose reports are incorporated by reference through the date hereof in the Memorandum are independent public accountants as required by the Securities Act and the rules and regulations of the Securities and Exchange Commission (the "Commission") thereunder. (d) The financial statements, and the related notes thereto, included or incorporated by reference in the Memorandum present fairly the consolidated financial position of Newcourt and its consolidated subsidiaries as of the dates indicated and the results of their operations and the changes in their consolidated cash flows for the periods specified; the financial statements, and related notes incorporated by reference in the Memorandum present fairly the consolidated financial position of AT&T Capital and its consolidated subsidiaries as of December 31, 1997, March 31, 1998 and June 30, 1998 and the results of their operations and the changes in their consolidated cash flows for such periods; said financial statements have been prepared in conformity with generally accepted accounting principles in Canada or the United States as applicable, applied on a consistent basis, and the supporting schedules included or incorporated by reference in the Memorandum present fairly the information required to be stated therein; and the pro forma financial information and the related notes thereto, included or incorporated by reference in the Memorandum, have been prepared in accordance with the applicable requirements of the Securities Act and Exchange Act, as applicable, and is based upon good faith estimates and assumptions believed by Newcourt and AT&T Capital to be reasonable. 2 (e) Since the respective dates as of which information is given in the Memorandum through the date hereof, there has not been any change in the capital stock (other than transfers of stock (i) among the Company and its subsidiaries relating to restructuring transactions or (ii) existing owners of the stock through either private or public market transactions) or long-term debt of Newcourt or AT&T Capital or any of their respective subsidiaries, or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, business, prospects, management, financial position, stockholders' equity or results of operations of Newcourt or AT&T Capital and their respective subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Memorandum; and except as set forth or contemplated in the Memorandum neither Newcourt, AT&T Capital nor any of their respective subsidiaries has entered into any transaction or agreement (whether or not in the ordinary course of business) that would have a Material Adverse Effect. (f) The Indenture has been duly authorized, executed and delivered by the Company and constitutes the valid and binding agreement of the Company, enforceable in accordance with its terms (except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equity principles); (ii) the Notes have been validly authorized and, when duly executed, authenticated and delivered as provided in the Indenture, will be validly issued and outstanding, and will constitute valid and binding agreements of the Company entitled to the benefits of the Indenture and enforceable in accordance with their terms (except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equity principles); and (iii) the Notes and the Indenture conform to the descriptions thereof contained in the Memorandum. (g) The Guarantee has been duly authorized, executed and delivered by AT&T Capital and constitutes the valid and binding agreement of AT&T Capital, enforceable in accordance with its terms (except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equity principles); and (ii) the Guarantee conforms to the description thereof contained in the Memorandum. (h) Each of the Company, AT&T Capital and their respective subsidiaries has been duly incorporated, is validly existing and in good standing under the laws of its respective jurisdiction of incorporation, is duly qualified to do business and in good standing as a foreign corporation in each jurisdiction in which its 3 respective ownership of properties or the conduct of its respective businesses requires such qualification (except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect, and has the power and authority necessary to own or hold its respective properties and to conduct the businesses in which it is engaged, as described in the Memorandum. (i) Neither the Company, AT&T Capital nor any of their respective subsidiaries is in violation of its corporate charter or by-laws or in default under any agreement, indenture or instrument, the effect of which violation or default would have a Material Adverse Effect. (j) The execution, delivery and performance of this Agreement by the Company and AT&T Capital and the execution, delivery and performance by AT&T Capital of the Guarantee and the consummation of the transactions contemplated hereby and thereby will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company, AT&T Capital or any of their respective subsidiaries is a party or by which the Company, AT&T Capital or any of their respective subsidiaries is bound or to which any of the property or assets of the Company, AT&T Capital or any of their respective subsidiaries is subject, nor will such actions result in any violation of the provisions of the charter or by-laws of the Company, AT&T Capital or any of their respective subsidiaries or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company, AT&T Capital or any of their respective subsidiaries or any of their properties or assets, the effect of which breach, violation or default would have a Material Adverse Effect; and except for such consents, approvals, authorizations, registrations or qualifications as may be required under applicable state securities laws in connection with the purchase and distribution of the Notes and the Guarantee by any Initial Purchaser, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution and delivery by the Company and AT&T Capital of, compliance by the Company and AT&T Capital with the provisions of, or consummation of the transactions contemplated by, this Agreement, except to the extent that the effect of the failure to obtain such consent, approval, authorization or order or to make such filing or registration would not have a Material Adverse Effect. 4 (k) This Agreement has been duly authorized, executed and delivered by the Company and AT&T Capital and constitutes the valid and binding agreement of the Company and AT&T Capital, enforceable in accordance with its terms (except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equity principles). (l) Neither the Newcourt nor any of its affiliates does business with the government of Cuba or with any person or affiliate located in Cuba within the meaning of Section 517.075, Florida Statutes; (m) Neither Newcourt nor AT&T Capital nor any of their respective affiliates (as defined in Rule 501(b) of Regulation D under the Securities Act, an "Affiliate") has directly, or through any agent, (i) sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any security (as defined in the Securities Act) which is or will be integrated with the sale of the Notes in any manner that would require the registration under the Securities Act of the Notes or (ii) engaged in any form of general solicitation or general advertising in connection with the offering of the Notes (as those terms are used in Regulation D under the Securities Act), or in any manner involving a public offering of the Notes within the meaning of Section 4(2) of the Securities Act. (n) Neither the Company, AT&T Capital nor any of their respective Significant Subsidiaries is an "investment company" within the meaning of such term under the Investment Company Act of 1940, as amended, and the rules and regulations of the Securities and Exchange Commission (the "Commission") thereunder. (o) There are no legal or governmental proceedings pending to which the Company, AT&T Capital or any of their respective Significant Subsidiaries is a party or of which any property or asset of the Company, AT&T Capital or any of their respective Significant Subsidiaries is the subject which, if determined adversely to the Company, AT&T Capital or any of their respective Significant Subsidiaries, might have a Material Adverse Effect; and to the best of the Company has not been advised that any such proceedings are threatened or contemplated by governmental authorities or threatened by others that is required to be disclosed in the Memorandum which is not so disclosed. 3. Purchase of Notes by the Initial Purchasers. (a) On the basis of the representations and warranties and on the terms and subject to the conditions herein set forth, each of the Initial Purchasers agrees to purchase from Newcourt, severally and not jointly, and on the terms and subject 5 to the conditions herein set forth Newcourt agrees to sell to each of the Initial Purchasers, severally and not jointly, the principal amount of Notes set forth opposite its name in Schedule I at a purchase price equal to 99.139% of the principal amount of such Notes. (b) If, for any reason (other than termination of this Agreement in accordance with the provisions of Section 7 or 8 hereof), one or more of the Initial Purchasers shall fail or refuse to pay for the Notes it has or they have agreed to purchase (any such Initial Purchaser being hereinafter referred to as a "defaulting Initial Purchaser"), and the aggregate principal amount of the Notes which such defaulting Initial Purchaser or Initial Purchasers agreed but failed or refused to purchase is not more than one-tenth of the aggregate principal amount of the Notes, the remaining Initial Purchasers shall be obligated severally in the proportion which the amounts of Notes set forth opposite their names in Schedule I of this Agreement bear to the aggregate principal amount of the Notes set forth opposite the names of all such non-defaulting Initial Purchasers (or in such other proportion as the Representative shall specify) to purchase the Notes which the defaulting Initial Purchaser or Initial Purchasers agreed but failed or refused to purchase; provided that in no event shall the principal amount of Notes that any Initial Purchaser is purchasing be increased pursuant to the provisions of this paragraph in an amount in excess of one-tenth of such principal amount of such Notes without the written consent of such Initial Purchaser. In the event that any Initial Purchaser or Initial Purchasers shall fail or refuse to purchase the Notes and the aggregate principal amount of the Notes with respect to which such default occurs is more than one-tenth of the aggregate principal amount of the Notes, and arrangements satisfactory to the Representative and the Company for the purchase of all such Notes are not made within forty-eight (48) hours after such default, this Agreement will terminate without liability on the part of any of the non-defaulting Initial Purchasers or of the Company. In the event that the non-defaulting Initial Purchasers agree to purchase, in accordance with this paragraph, all the Notes which the defaulting Initial Purchaser or Initial Purchasers fail or refuse to purchase, the Representative or the Company shall have the right to postpone the time of closing, but in no event for longer than seven days, in order that the required changes, if any, in the Memorandum or in any other documents or arrangements may be effected. Except to the extent provided in subparagraphs (c) and (f) of Section 6 hereof, termination of this Agreement pursuant to this Section 3 shall be without any liability on the part of the Company or any Initial Purchaser other than a defaulting Initial Purchaser. Any action taken under this Section shall not relieve any defaulting Initial Purchaser from liability in respect of any default of such Initial Purchaser under this Agreement. 4. Sale and Resale of the Notes by the Initial Purchasers. Each of the Initial Purchasers has advised Newcourt that it proposes to offer the Notes for resale upon the terms and conditions set forth in this Agreement and in the Memorandum. Each of the Initial Purchasers hereby represents and warrants to, and agrees with, Newcourt that the Initial Purchaser (i) is purchasing the Notes pursuant to a private sale exempt from registration under the Securities Act, (ii) will not solicit offers for, or offer to sell, the Notes by means of any form of general solicitation or general advertising or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (iii) will solicit offers for the Notes only from, and will offer, sell or deliver the Notes, as part of their initial offering, only to, persons in the United States whom the Initial Purchaser reasonably believes 6 to be (A) qualified institutional buyers ("Qualified Institutional Buyers") as defined in Rule 144A under the Securities Act, as such rule may be amended from time to time ("Rule 144A") or, if any such person is buying for one or more institutional accounts for which such person is acting as a fiduciary or agent, only when such person has represented to the Initial Purchaser that each such account is a Qualified Institutional Buyer, to whom notice has been given that such sale or delivery is being made in reliance on Rule 144A or (B) institutional accredited investors ("Accredited Investors") as defined in Rule 501(1), (20, (3) or (7) under Regulation D under the Securities Act who execute letters of representations in the form included as Appendix A to the Memorandum in private sales exempt from registration under the Securities Act. 5. Delivery of and Payment for the Notes. (a) Delivery of, and payment of the purchase price for, the Notes which the Initial Purchasers severally agree to purchase shall be made at the office of Winston & Strawn, New York, New York, at 10:00 a.m. (New York time) on December 15, 1998 or at such other place or time on the same or such other day as shall be agreed upon by the Company and the Representative (such date and time of payment and delivery being herein called the "Closing Date"). (b) On the Closing Date, payment shall be made to the Company in immediately available funds by wire transfer of same-day funds to such account or accounts as the Company shall specify prior to the Closing Date or by such means as the parties hereto shall agree prior to the Closing Date against delivery to the Representative for the account of each Initial Purchaser of the certificates, if any, evidencing the Notes. Upon delivery, the Notes shall be registered in such names and in such denominations as the Representative shall request in writing not less than two full business days prior to the Closing Date. The Company agrees to make the Notes available to the Representative for inspection on behalf of the Initial Purchasers at the office of Winston & Strawn, New York, New York, not later than 2:00 p.m. (New York time) on the business day next preceding the Closing Date. 6. Covenants of the Company and AT&T Capital. The Company and AT&T Capital jointly and severally agree as follows: (a) Prior to making any amendment or supplement to the Memorandum other than by filing documents under the Exchange Act which are incorporated by reference therein, the Company or AT&T Capital, as applicable, shall furnish a copy thereof to the Representative and counsel to the Representative and will not effect any such amendment or supplement to which the Representative shall reasonably object by notice to the Company after a reasonable period to review, which shall not in any case be longer than three business days after receipt of such copy. (b) The Company will deliver to the Representative a reasonable number of copies of the Memorandum and any supplements and amendments thereto. 7 (c) The Company will pay all reasonable expenses in connection with the preparation of the Indenture and Guarantee, the rating of the Notes, the issuance and delivery of the Notes and the preparation and printing of the copies of the Memorandum to be furnished as provided in subparagraph (b) above; and will pay any taxes on the issuance of the Notes, but will not pay any transfer taxes. The Company will not be required to pay any amount for any expenses of the Representative or any of the Initial Purchasers, except the cost of mailing to the Initial Purchasers copies of the Memorandum and all amendments and supplements thereto (including documents incorporated by reference), and except as provided by subparagraph (f) below, and provided that if no Notes are delivered to and purchased by the Initial Purchasers as a result of a default by the Company or AT&T Capital or the occurrence of any of the events referred to in Section 8 hereof, the Company, in addition to any payment provided for by subparagraph (f) of this Section 6, will reimburse the Representative for the reasonable out-of-pocket expenses of the Initial Purchasers, not exceeding $15,000, and for the fees and disbursements of Winston & Strawn, the Initial Purchasers agreeing to pay such expenses, fees and disbursements in any other event. Neither the Company nor AT&T Capital will in any event be liable to any of the several Initial Purchasers for damages on account of loss of anticipated profits. (d) The Company and AT&T Capital will apply the proceeds from the sale of the Notes as set forth under the heading "Use of Proceeds" appearing in the Memorandum. (e) So long as any of the Notes shall remain outstanding, the Company or AT&T Capital will furnish to the Representative, upon request and in reasonable quantities for distribution to the Initial Purchasers, copies of such documents, reports and other information as may be required to be furnished to noteholders under the Indenture. (f) The Company and AT&T Capital will use their reasonable best efforts to qualify the Notes, or to assist in the qualification of the Notes by or on behalf of the Representative, for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Representative may designate, and will pay or reimburse the Representative for counsel fees, filing fees and out-of-pocket expenses in connection with such qualification; provided that neither the Company nor AT&T Capital shall be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction or to pay, or to incur, or to reimburse the Initial Purchaser for, any such expenses if no Notes are delivered to and purchased by the Initial Purchasers hereunder because of a default by one or more of the Initial Purchasers or the termination of this Agreement pursuant to Section 8 hereof. 8 (g) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to purchasers, in the opinion of the counsel for the Initial Purchasers and counsel to the Company, any event shall occur which should be set forth in an amendment of or a supplement to the Memorandum in order that the Memorandum will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in light of the circumstances existing at the time it is delivered to a purchaser, or if it is necessary to amend or supplement the Memorandum to comply with applicable law, the Company or AT&T Capital, as applicable, will, upon the occurrence of each such event, forthwith at its expense, prepare and furnish to the Representative, in reasonable quantities for distribution to the Initial Purchasers, as many copies as the Representative may reasonably request of such amendment or supplement. For the purpose of this subparagraph (g), the Company and AT&T Capital will furnish such due diligence information customary for transactions of the type contemplated by this Agreement as the Representative may from time to time request. Notwithstanding any of the other provisions of this subparagraph (g), neither the Company nor AT&T Capital shall be under any obligation to furnish any supplement to or amendment of the Memorandum on account of any change in, or to include in any amended Memorandum any change in, the information furnished to the Company or AT&T Capital by any Initial Purchaser for use in the Memorandum, unless the Representative, on behalf of such Initial Purchaser, has advised the Company in writing of such change and has requested the Company at the expense of such Initial Purchaser to prepare a supplement to or amendment of the Memorandum to reflect such change or to include such change in an amended Memorandum. (h) None of the Company, AT&T Capital or any of their respective affiliates (as defined in the Securities Act) will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) in a transaction that could be integrated with the sale of the Notes in a manner that would require the registration under the Securities Act of the Notes. (i) So long as the Notes are outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, the Company will either (i) file reports and other information with the Commission under Section 13 or 15(d) of the Exchange Act, or (ii) in the event that it is not subject to Section 13 or 15(d) of the Exchange Act, make available to holders of the Notes and prospective purchasers of the Notes designated by such holders, upon request of prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act to permit compliance with Rule 144A in connection with resales of the Notes. 9 (j) Each of the Notes will bear the legend contained in "Transfer Restrictions" in the Memorandum and upon the other terms contained therein, except after such Notes are resold or exchanged pursuant to a registration statement effective under the Securities Act. (k) The Company and AT&T Capital will take such steps as shall be reasonably necessary to ensure that neither the Company, AT&T Capital nor any of their respective Significant Subsidiaries shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder. 7. Conditions of the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase and pay for the Notes shall be subject to the following additional conditions: (a) The Initial Purchasers shall not have discovered and disclosed to the Company or AT&T Capital on or prior to the Closing Date that the Memorandum or any amendment or supplement thereto contains any untrue statement of a fact which, in the reasonable opinion of Winston & Strawn, counsel for the Initial Purchasers, is material or omits to state any fact which, in the opinion of the such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading. (b) At or prior to the time of closing, the Representative shall have received from counsel for the Company, an opinion, satisfactory to Winston & Strawn, to the effect that -- (i) Newcourt has been duly incorporated and is validly existing and in good standing under the laws of the Province of Ontario, Canada and AT&T Capital has been duly incorporated and is validly existing and in good standing under the laws of the State of Delaware; each of Newcourt and AT&T Capital is duly qualified to do business and in good standing as a foreign corporation in all jurisdictions in which its ownership or leasing of properties or the conduct of its businesses requires such qualification (except where the failure to so qualify or be in good standing would not have a Material Adverse Effect), and has all power and authority necessary to own its respective properties and conduct the businesses in which it is engaged, as described in the Memorandum; (ii) The issue and sale of the Notes by Newcourt and the compliance by Newcourt with all the provisions of this Agreement, the Registration Rights Agreement, and the Indenture, and the consummation of the transactions contemplated hereby and thereby will not conflict with or 10 result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which Newcourt or any of its subsidiaries is a party or by which Newcourt or any of its subsidiaries is bound or to which any of the property or assets of Newcourt or any of its subsidiaries is subject, nor will such actions result in any violation of the provisions of the charter or by-laws of Newcourt or any of its subsidiaries or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over Newcourt or any of its subsidiaries or any of their properties or assets (except for such conflicts, breaches, violations and defaults as would not have a Material Adverse Effect); and, except for such consents, approvals, authorizations, registrations or qualifications as may be required under applicable state securities laws in connection with the purchase and distribution of the Notes by the Initial Purchasers, no consent, approval, authorization, qualification or order of, or filing or registration with, any such court or governmental agency or body is required for the execution and delivery by Newcourt of, compliance by Newcourt with the provisions of, or the consummation of the transactions contemplated by this Agreement, except to the extent that the effect of the failure to obtain such consent, approval, authorization, qualification or order or to make such filing or registration would not have a Material Adverse Effect; (iii) The issue of the Guarantee by AT&T Capital and the compliance by AT&T Capital with all the provisions of this Agreement, the Registration Rights Agreement and the Guarantee and the consummation of the transactions contemplated hereby and thereby will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which AT&T Capital or any of its subsidiaries is a party or by which AT&T Capital or any of its subsidiaries is bound or to which any of the property or assets of AT&T Capital or any of its subsidiaries is subject, nor will such actions result in any violation of the provisions of the charter or by-laws of AT&T Capital or any of its subsidiaries or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over AT&T Capital or any of its subsidiaries or any of their properties or assets (except for such conflicts, breaches, violations and defaults as would not have a Material Adverse Effect); and, except for such consents, approvals, 11 authorizations, registrations or qualifications as may be required under applicable state securities laws in connection with the purchase and distribution of the Notes and Guarantee by the Initial Purchasers, no consent, approval, authorization, qualification or order of, or filing or registration with, any such court or governmental agency or body is required for the execution and delivery by AT&T Capital of, compliance by AT&T Capital with the provisions of, or the consummation of the transactions contemplated by this Agreement, the Registration Rights Agreement and the Guarantee except to the extent that the effect of the failure to obtain such consent, approval, authorization, qualification or order or to make such filing or registration would not have a Material Adverse Effect; (iv) Each of this Agreement, the Indenture and the Registration Rights Agreement has (A) been duly authorized, executed and delivered by Newcourt and (B) is a valid and binding agreement of Newcourt enforceable in accordance with its terms (except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equity principles); (v) The Notes (A) have been duly authorized by Newcourt and, when duly executed and authenticated as provided in the Indenture and delivered against payment therefor in accordance with this Agreement, (B) will be duly and validly issued and outstanding, and (C) will constitute valid and binding agreements of Newcourt enforceable in accordance with their terms (except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally and subject to general equitable principles), and entitled to the benefits of the Indenture; (vi) The Guarantee has been duly authorized, executed and delivered by AT&T Capital and is a valid and binding agreement of AT&T Capital enforceable in accordance with its terms (except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally and subject to general equitable principles); (vii) The statements made in the Memorandum under the captions "Description of the Notes","Description of the Guarantee" and "Exchange Offer; Registration Rights; Liquidated Damages", insofar as such statements constitute summaries of the legal matters, 12 documents or proceedings specifically referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings and fairly summarize the matters referred to therein; (viii) This Agreement has been duly authorized, executed and delivered on behalf of (A) Newcourt and (B) AT&T Capital and (C) is valid and binding agreement of Newcourt and AT&T Capital, enforceable in accordance with its terms (except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equity principles); and (ix) Except as to financial statements and schedules contained therein, as to which such counsel is not called upon to express any opinion or belief, the Memorandum, and each document or portion thereof incorporated by reference in the Memorandum, as of the Closing Date, did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (c) At or prior to the time of closing, the Representative shall have received from Winston & Strawn an opinion to the effect specified in clauses (b)(iv)(B), (b)(v)(B), (b)(vi), (b)(vii), (b)(viii)(B) and (C) and (b)(ix). (d) At or prior to the time of closing, the Representative shall have received from (i) Sidley & Austin, special tax counsel to the Company, an opinion that its opinions expressed or referred to under the caption "Material United States Income Tax Consequences" and (ii) Blake, Cassels & Graydon, special tax counsel to the Company, an opinion that its opinions expressed or referred to under the caption "Canadian Federal Income Tax Considerations" in the Memorandum are correct in all material respects. (e) At each of the dates hereof and at or prior to the time of closing, the Representative shall have received an executed copy of a letter from Ernst & Young, addressed to Newcourt and to the Representative, in form and substance satisfactory to the Representative containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to financial statements and certain financial information, including the financial information contained or incorporated by reference in the Memorandum as identified by the Representative. 13 (f) Since the respective dates as of which information is given in the Memorandum there shall not have been, at the time of closing, any material adverse change in or affecting the general affairs, management, financial position, stockholders' equity or results of operations of Newcourt or AT&T Capital and their respective subsidiaries, otherwise than as set forth or contemplated in the Memorandum; the representations and warranties of Newcourt and AT&T Capital herein shall be true at the Closing Date; neither Newcourt nor AT&T Capital shall have failed, at or prior to the Closing Date to have performed all agreements herein contained which should have been performed by it at or prior to such time; and the Representative shall have received, at the Closing Date, a certificate to the foregoing effect dated the day of the closing and signed by the President, a Vice President or the Treasurer of each of Newcourt and AT&T Capital. (g) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the rating accorded Newcourt's or AT&T Capital's debt securities by any "nationally recognized statistical rating organization", as that term is defined by the Commission for purposes of rule 436(g) (2) under the Act and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of Newcourt's or AT&T Capital's debt securities. (h) Newcourt and AT&T Capital shall have executed and delivered the Registration Rights Agreement. (i) Prior to the time of closing, Newcourt shall have furnished to the Representative such further due diligence information customary for transactions of the type contemplated by this Agreement, certificates and documents as the Representative may reasonably request. In case any of the conditions specified above in this Section 7 shall not have been fulfilled, this Agreement may be terminated by the Representative by delivering written notice of termination to Newcourt. Any such termination shall be without liability of any party to any other party except to the extent provided in subparagraphs (c) and (f) of Section 6 hereof. 8. Termination of Agreement. This Agreement may be terminated by delivering written notice of termination to the Company at any time prior to the time of closing, by the Representative (with the consent of the Initial Purchasers which, together with the Representative, have agreed to purchase 50% or more of the aggregate principal amount of the Notes), if after the signing of this Agreement (i) trading in securities generally on the New York Stock Exchange or the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company or AT&T Capital on any exchange or in the over-the-counter market, shall have been suspended or 14 minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or New York State authorities, or (iii) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the offering or delivery of the Notes on the terms and in the manner contemplated in the Memorandum. A termination of this Agreement pursuant to this Section shall be without liability of any party to any other party. 9. Indemnification And Contribution. (a) The Company and AT&T Capital shall, jointly and severally, indemnify and hold each Initial Purchaser harmless from and against any and all losses, claims, damages, and liabilities, joint or several, to which such Initial Purchaser may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages, liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Memorandum, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Initial Purchaser for any legal or other expenses reasonably incurred by such Initial Purchaser in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company and AT&T Capital shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon information contained in or omitted from the Memorandum in reliance on Provided Information. (b) Each Initial Purchaser severally will indemnify and hold harmless the Company and AT&T Capital against any losses, claims, damages or liabilities to which the Company or AT&T Capital may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages, liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Memorandum, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Provided Information in the Memorandum or any such amendment or supplement; and will reimburse the Company and AT&T Capital for any legal or other expenses reasonably incurred by the Company and AT&T Capital in connection with investigating or defending any such action or claim as such expenses are incurred. (c) The Company, AT&T Capital and each Initial Purchaser agree that upon the commencement of any action against it, its directors, its officers, or any person controlling it as aforesaid in respect of which indemnity may be sought on account of any indemnity agreement contained herein, it will promptly give written notice of the commencement thereof to the party or 15 parties against whom indemnity shall be sought, but the omission so to notify such indemnifying party or parties of any such action shall not relieve such indemnifying party or parties from any liability which it or they may have to the indemnified party or parties otherwise than on account of such indemnity agreement. In case such notice of any such action shall be so given, such indemnifying party or parties shall be entitled to participate at its or their own expense in the defense of such action, or, if it or they so elect, to assume the defense of such action, and in the latter event such defense shall be conducted by counsel chosen by such indemnifying party or parties and satisfactory to the indemnified party or parties who shall be defendant or defendants in such action, and such defendant or defendants shall bear the fees and expenses of any additional counsel retained by them; but if the indemnifying party or parties shall not elect to assume the defense of such action, such indemnifying party or parties will reimburse such indemnified party or parties for the reasonable fees and expenses of any counsel retained by them. In the event that the parties to any such action (including impleaded parties) include the Company, AT&T Capital and one or more of the Initial Purchasers and either (i) the indemnifying party or parties and indemnified party or parties mutually agree or (ii) representation of both the indemnifying party or parties and the indemnified party or parties by the same counsel is inappropriate under applicable standards of professional conduct due to actual or potential differing interests between them, then the indemnifying party or parties shall not have the right to assume the defense of such action on behalf of such indemnified party or parties and will reimburse such indemnified party or parties for the reasonable fees and expenses of any counsel retained by them and satisfactory to the indemnifying party or parties, it being understood that the indemnifying party or parties shall not, in connection with any one action or separate but similar or related actions arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to local counsel) for all such indemnified parties, which shall be designated in writing by the Representative in the case of an action in which one or more Initial Purchasers or controlling persons are indemnified parties and by the Company or AT&T Capital in the case of an action in which the Company or AT&T Capital or any of their respective directors, officers or controlling persons are indemnified parties. The indemnifying party or parties shall not be liable under this Agreement with respect to any settlement made by any indemnified party or parties without prior written consent by the indemnifying party or parties to such settlement. (d) If the indemnification provided for in subparagraph (a) or (b) of this Section 9 is unavailable to an indemnified party in respect of any losses, claims, damages, or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party under such paragraph, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company and AT&T Capital on the one hand and the Initial Purchasers on the other from the offering of the Notes. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under subparagraph (c) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company and AT&T Capital on one hand and the Initial Purchasers on the other in connection with the statements or omissions 16 which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company and AT&T Capital on one hand and the Initial Purchasers on the other shall be deemed to be in the same proportion as the total net proceeds from the offering of the Notes purchased under this Agreement (before deducting expenses) received by the Company bear to the total discounts and commissions received by the Initial Purchasers with respect to the Notes purchased under this Agreement, in each case as set forth in the Memorandum. The relative fault of the Company and AT&T Capital and of the Initial Purchasers shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or AT&T Capital on one hand or by the Initial Purchasers on the other and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company, AT&T Capital and the Initial Purchasers agree that it would not be just and equitable if contributions pursuant to this subparagraph (d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this subparagraph (d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities referred to in this subparagraph (d) shall be deemed to include, subject to the limitations set forth above in this Section 9, any legal or other expenses reasonably incurred by such indemnified party in connection with defending any such action or claim. Notwithstanding the provisions of this subparagraph (d), no Initial Purchaser shall be required to contribute any amount in excess of the amount by which the total price at which the Notes sold and distributed by it were offered to the purchasers exceeds the amount of any damages which the Initial Purchaser has been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Initial Purchasers' obligations in this subparagraph (d) to contribute are several in proportion to their respective purchase obligations as set forth in Schedule I hereto (including an increase pursuant to Section 3(b)) and not joint. (e) The obligations of the Company and AT&T Capital under this Section 9 shall be in addition to any liability which the Company and AT&T Capital may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any Initial Purchasers within the meaning of the Securities Act; and the obligations of the Initial Purchasers under this Section 9 shall be in addition to any liability which the Initial Purchasers may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company or AT&T Capital and to each person, if any, who controls the Company or AT&T Capital within the meaning of the Securities Act. 10. Definition of Certain Terms. (a) The term "business day" means any day on which the New York Stock Exchange is open for trading. (b) The term "Significant Subsidiary" has the meaning set forth in Rule 1-02 of Regulation S-X. 17 (c) The term "Material Adverse Effect" means a material adverse change in, or material adverse effect on, the consolidated financial position, stockholders' equity, results of operations, business or prospects of the Company, AT&T Capital and their respective Significant Subsidiaries taken as a whole. 11. Initial Purchasers and the Representative. The term "Initial Purchasers" as used herein shall mean the several persons, firms and corporations named in Schedule I hereof, and the term "Initial Purchaser" shall mean any one of such persons, firms, or corporations. The term "Representative" shall mean the representative to whom this Agreement is addressed, who, by executing this Agreement, represents that it has been authorized by each Initial Purchaser to execute this Agreement on behalf of such Initial Purchaser and to act for such Initial Purchaser in the manner herein provided. All obligations of the Initial Purchasers hereunder are several and not joint. 12. Miscellaneous. This Agreement shall inure to the benefit of the Company and AT&T Capital, the several Initial Purchasers and their respective directors and officers and each controlling person referred to in Section 9 hereof and their respective successors. Nothing in this Agreement is intended or shall be construed to give to any other person, firm or corporation any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained. The term "successor" as used in this Agreement shall not include any purchaser, as such purchaser, of any of the Notes from any of the several Initial Purchasers. 13. Notices. All communications hereunder shall be in writing, and if to the Initial Purchasers, unless otherwise provided, shall be mailed or delivered to the Representative at Three World Financial Center, New York, New York 10285 and if to the Company or AT&T Capital unless otherwise provided, shall be mailed or delivered to the Company at 2 Gatehall Drive, Parsippany, New Jersey 07054, Attn: Treasurer with a copy to the General Counsel. 14. Governing Law. The validity and interpretation of this Agreement shall be governed by the laws of the State of New York. 15. Survival Clause. Except with respect to any Initial Purchaser who is in default within the meaning of Section 3 hereof, the indemnity and contribution agreement contained in Section 9 hereof and the representations and warranties of the Company and AT&T Capital set forth in this Agreement or in any certificate furnished pursuant hereto shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Initial Purchaser or any person controlling any Initial Purchaser, or (iii) acceptance of and payment for the Notes. 16. Counterparts. This Agreement may be executed in one or more counterparts and, if executed in more than one counterpart, the executed counterparts shall each be deemed to be an original but all such counterparts shall together constitute one and the same instrument. 18 17. Headings. The headings herein are inserted for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement. [signature page follows] 19 Please sign and return to us the enclosed duplicate of this letter, whereupon this letter will become a binding agreement between the Company, AT&T Capital and the Initial Purchasers, in accordance with its terms. Very truly yours, NEWCOURT CREDIT GROUP INC. By: /s/ GLENN VOTEK --------------------------------- Printed Name: Glenn Votek ----------------- Title: Executive Vice President & Treasurer ------------------------ AT&T CAPITAL CORPORATION By: /s/ GLENN VOTEK --------------------------------- Printed Name: Glenn Votek ----------------- Title: Executive Vice President & Treasurer ------------------------ The foregoing Agreement is hereby confirmed and accepted as of the date first above written LEHMAN BROTHERS INC., as Representative of the several Initial Purchasers By:________________________________ Printed Name:___________________ Title:__________________________ Please sign and return to us the enclosed duplicate of this letter, whereupon this letter will become a binding agreement between the Company, AT&T Capital and the Initial Purchasers, in accordance with its terms. Very truly yours, NEWCOURT CREDIT GROUP INC. By: --------------------------------- Printed Name: ----------------- Title: ------------------------ AT&T CAPITAL CORPORATION By: --------------------------------- Printed Name: ----------------- Title: ------------------------ The foregoing Agreement is hereby confirmed and accepted as of the date first above written LEHMAN BROTHERS INC., as Representative of the several Initial Purchasers By: /s/ HERBERT McDADE -------------------------------- Printed Name: Herbert McDade ------------------- Title: Managing Director -------------------------- SCHEDULE I INITIAL PURCHASERS Lehman Brothers Inc. $180,000,000 Chase Securities Inc. $37,500,000 J.P. Morgan Securities Inc. $37,500,000 Credit Suisse First Boston Corporation $15,000,000 Merrill Lynch, Pierce, Fenner & Smith Incorporated $15,000,000 Salomon Smith Barney Inc. $15,000,000 ------------ Total $300,000,000
SCHEDULE II NEWCOURT CREDIT GROUP INC. ISSUE TERMS: - -------------------------------------------------------------------------------- Issuer: Newcourt Credit Group Inc. - -------------------------------------------------------------------------------- Guarantor: AT&T Capital Corporation - -------------------------------------------------------------------------------- Issue Type: 144A with Registration Rights - -------------------------------------------------------------------------------- Principal Amount: $300,000,000 - -------------------------------------------------------------------------------- Trade Date: December 8, 1998 - -------------------------------------------------------------------------------- Settlement Date: December 15, 1998 - -------------------------------------------------------------------------------- Final Maturity Date: December 17, 2003 - -------------------------------------------------------------------------------- Interest Payment Dates: June 15 and December 15 - -------------------------------------------------------------------------------- Initial Interest Payment Date: June 15, 1999 - -------------------------------------------------------------------------------- Coupon: 7.125% - -------------------------------------------------------------------------------- Issue Price: 99.739% - -------------------------------------------------------------------------------- Ratings: Baa3/BBB - -------------------------------------------------------------------------------- Price to Issuer: 99.139% - -------------------------------------------------------------------------------- Net Proceeds: $297,417,000 - -------------------------------------------------------------------------------- Initial Purchasers: See Schedule I - --------------------------------------------------------------------------------
22 EX-12 13 EXHIBIT 12A EXHIBIT 12A NEWCOURT CREDIT GROUP INC. COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES (DOLLARS IN U.S. THOUSANDS)
PERIOD ENDED DECEMBER 31, June 30, -------------------------------------------------------- 1999 1998 1997 1996 1995 1994 - ----------------------------------------------------------------------------------------------------------------- Earnings from continuing operations: Income before income taxes and extraordinary loss $162,885 $304,170 $ 10,356 $ 41,332 $22,281 $14,575 Deduct undistributed earnings on equity investments, net of losses -- -- -- -- -- -- Add fixed charges included in income before income taxes $416,636 $641,319 $ 95,654 $ 68,590 $42,318 $26,273 - ----------------------------------------------------------------------------------------------------------------- Total earnings from continuing operations, as adjusted $579,521 $945,489 $106,011 $109,922 $64,599 $40,848 - ----------------------------------------------------------------------------------------------------------------- Total fixed charges* $416,636 $641,319 $ 95,654 $ 68,590 $42,318 $26,273 Ratio of earnings to fixed charges 1.39 1.47 1.11 1.60 1.53 1.55 - -----------------------------------------------------------------------------------------------------------------
* Fixed charges include interest on indebtedness and the portion of rentals representative of the interest factor. EX-12 14 EXHIBIT 12B EXHIBIT 12B AT&T CAPITAL CORPORATION COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES (Dollars in U.S. Thousands)
December 31, June 30, ------------------------------------------------- Period Ended 1999 1998 1997 1996 1995 1994 - --------------------------------------------------------------------------------------- Earnings from continuing operations: Income before income taxes and extraordinary loss $ 80,012 $173,848 $ 32,036 $278,602 $208,239 $173,614 Deduct undistributed earnings on equity investments, net of losses - - - - - - Add fixed charges included in income before income taxes and cumulative effect of accounting change $310,113 $497,805 $460,221 $465,121 $418,624 $277,913 - ----------------------------------------------------------------------------------------- Total earnings from continuing operations, as adjusted $390,125 $671,653 $492,257 $743,723 $626,863 $451,527 - ----------------------------------------------------------------------------------------- Total fixed charges* $310,113 $497,805 $460,221 $465,121 $418,624 $277,913 Ratio of earnings to fixed charges 1.26 1.35 1.07 1.60 1.50 1.62 - -----------------------------------------------------------------------------------------
* Fixed charges include interest on indebtedness and the portion of rentals representative of the interest factor. Fixed charges do not include distributions on Company-obligated preferred securities of the Company's subsidiaries. Prior to October 1, 1996, a portion of the company's indebtedness to AT&T Corp. did not bear interest. EX-23 15 EXHIBIT 23A CONSENT OF INDEPENDENT AUDITORS We consent to the reference to our Firm under the caption "Experts" in the Registration Statement on Form F-4 and related prospectus of Newcourt Credit Group Inc. ("Newcourt") for the Offer to Exchange all $300,000,000 7.125% Notes, Series A due December 17, 2003 for $300,000,000 7.125% Exchange Notes, Series A due December 17, 2003 and to the incorporation by reference therein of our report dated February 22, 1999, with respect to the consolidated financial statements of Newcourt as at December 31, 1998 and 1997 and for the years then ended included in Newcourt's Current Report on Form 6-K dated February 26, 1999 and in Newcourt's Annual Report on Form 40-F for the year ended December 31, 1998, both of which have been filed with the Securities and Exchange Commission. Toronto, Canada Ernst & Young LLP August 12, 1999 Chartered Accountants EX-25 16 EXHIBIT 25 ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------- FORM T-1 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE --------------------------------------- CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)_________ --------------------------------------- THE CHASE MANHATTAN BANK (Exact name of trustee as specified in its charter) NEW YORK 13-4994650 (State of incorporation (I.R.S. employer if not a national bank) identification No.) 270 PARK AVENUE NEW YORK, NEW YORK 10017 (Address of principal executive offices) (Zip Code)
William H. McDavid General Counsel 270 Park Avenue New York, New York 10017 Tel: (212) 270-2611 (Name, address and telephone number of agent for service) --------------------------------------- NEWCOURT CREDIT GROUP INC. (Exact name of obliger as specified in its charter) ONTARIO NOT APPLICABLE (Province or other jurisdiction of (I.R.S. employer incorporation or organization) identification No.) NEWCOURT CENTRE 207 QUEENS QUAY WEST TORONTO, ONTARIO M5J 1A7, CANADA (Address of principal executive offices)
AT&T CAPITAL CORPORATION (Exact name of obligor as specified in its charter) DELAWARE 22-3211453 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification No.) 2 GATEHALL DRIVE PARSIPPANY, NEW JERSEY 07054 (Address of principal executive offices) (Zip Code)
--------------------------------------- DEBT SECURITIES (Title of the indenture securities) GENERAL Item 1. General Information, Furnish the following information as to the trustee: (a) Name and address of each examining or supervising authority to which it is subject. New York State Banking Department, State House, Albany, New York 12110. Board of Governors of the Federal Reserve System, Washington, D.C., 20551 Federal Reserve Bank of New York, District No. 2, 33 Liberty Street, New York, N.Y. Federal Deposit Insurance Corporation, Washington, D.C., 20429. (b) Whether it is authorized to exercise corporate trust powers. Yes. Item 2. Affiliations with the Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation. None. -2- Item 16. List of Exhibits List below all exhibits filed as a part of this Statement of Eligibility. 1. A copy of the Articles of Association of the Trustee as now in effect, including the Organization Certificate and the Certificates of Amendment dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982, February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1 filed in connection with Registration Statement No. 333-06249, which is incorporated by reference). 2. A copy of the Certificate of Authority of the Trustee to Commence Business (see Exhibit 2 to Form T-1 filed in connection with Registration Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in connection with the merger of Chemical Bank and The Chase Manhattan Bank (National Association), Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank). 3. None, authorization to exercise corporate trust powers being contained in the documents identified above as Exhibits 1 and 2. 4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form T-1 filed in connection with Registration Statement No. 333-06249, which is incorporated by reference). 5. Not applicable. 6. The consent of the Trustee required by Section 321(b) of the Act (see Exhibit 6 to Form T-1 filed in connection with Registration Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in connection with the merger of Chemical Bank and The Chase Manhattan Bank (National Association), Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank). 7. A copy of the latest report of condition of the Trustee, published pursuant to law or the requirements of its supervising or examining authority. 8. Not applicable. 9. Not applicable. SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939 the Trustee, The Chase Manhattan Bank, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York and State of New York, on the 11th day of August, 1999. THE CHASE MANHATTAN BANK By /s/ L. O'Brien --------------------------- L. O'Brien Vice President -3- Exhibit 7 to Form T-1 Bank Call Notice RESERVE DISTRICT NO. 2 CONSOLIDATED REPORT OF CONDITION OF The Chase Manhattan Bank of 270 Park Avenue, New York, New York 10017 and Foreign and Domestic Subsidiaries, a member of the Federal Reserve System, at the close of business December 31, 1998, in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
DOLLAR AMOUNT ASSETS IN MILLIONS Cash and balances due from depository institutions: Noninterest-bearing balances and currency and coin.......................................................... $13,915 Interest-bearing balances ................................................. 7,805 Securities:..................................................................... Held to maturity securities..................................................... 1,429 Available for sale securities................................................... 56,327 Federal funds sold and securities purchased under agreements to resell....................................................... 21,733 Loans and lease financing receivables; Loans and leases, net of unearned income......................... $131,095 Less: Allowance for loan and lease losses........................ 2,711 Less: Allocated transfer risk reserve............................ 0 -------- Loans and leases, net of unearned income, allowance, and reserve..................................................... 128,384 Trading Assets.................................................................. 48,949 Premises and fixed assets (including capitalized leases).................................................................... 3,095 Other real estate owned......................................................... 239 Investments in unconsolidated subsidiaries and associated companies....................................................... 199 Customers' liability to this bank on acceptances outstanding................................................................ 1,209 Intangible assets............................................................... 2,081 Other assets.................................................................... 11,352 -------- TOTAL ASSETS.................................................................... $296,717 ========
-4- LIABILITIES Deposits In domestic offices........................................................ $105,879 Noninterest-bearing............................................. $39,175 Interest-bearing................................................ 66,704 ------- In foreign offices, Edge and Agreement, subsidiaries and IBF's..................................................... 79,294 Noninterest-bearing ............................................ $ 4,082 Interest-bearing................................................ 75,212 Federal funds purchased and securities sold under agreements to repurchase................................................................... 32,546 Demand notes issued to the U.S. Treasury........................................ 629 Trading liabilities............................................................. 36,807 Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases): With a remaining maturity of one year or less.............................. 4,478 With a remaining maturity of more than one year through three years.................................................... 213 With a remaining maturity of more than three years......................... 115 Bank's liability on acceptances executed and outstanding ....................... 1,209 Subordinated notes and debentures............................................... 5,408 Other liabilities............................................................... 10,855 TOTAL LIABILITIES............................................................... 277,433 -------- EQUITY CAPITAL Perpetual preferred stock and related surplus 0 Common stock.................................................................... 1,211 Surplus (exclude all surplus related to preferred stock)........................ 11,016 Undivided profits and capital reserves.......................................... 6,762 Net unrealized holding gains (losses) on available-for-sale securities................................................ 279 Cumulative foreign currency translation adjustments............................. 16 TOTAL EQUITY CAPITAL............................................................ 19,284 -------- TOTAL LIABILITIES AND EQUITY CAPITAL............................................ $296,717 ========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true to the best of my knowledge and belief. JOSEPH L. SCLAFANI We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct. WALTER V. SHIPLEY ) THOMAS G. LABRECQUE ) DIRECTORS WILLIAM B. HARRISON, JR.) -5- EX-99 17 EXHIBIT 99A LETTER OF TRANSMITTAL NEWCOURT CREDIT GROUP INC. OFFER FOR ALL OUTSTANDING 7.125% NOTES, SERIES A DUE DECEMBER 17, 2003 IN EXCHANGE FOR 7.125% EXCHANGE NOTES, SERIES A DUE DECEMBER 17, 2003, PURSUANT TO THE PROSPECTUS, DATED AUGUST 12, 1999 THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M. NEW YORK CITY TIME, ON WEDNESDAY, SEPTEMBER 15, 1999, UNLESS EXTENDED (THE 'EXPIRATION DATE'). TENDERS MAY BE WITHDRAWN PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE. Delivery To: The Chase Manhattan Bank, Exchange Agent By Mail, Overnight Courier, Hand Delivery or Facsimile: The Chase Manhattan Bank 55 Water Street New York, New York 10041 Attention: Carlos Esteves Phone: (212) 638-0828 Fax: (212) 638-7380 DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE, OR TRANSMISSION THEREOF VIA FACSIMILE OTHER THAN AS SET FORTH ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY. The undersigned acknowledges that he or she has received and reviewed the Prospectus, dated August 12, 1999 (the 'Prospectus'), of Newcourt Credit Group (the 'Company'), and this Letter of Transmittal (the 'Letter'), which together constitute the Company's offer (the 'Exchange Offer') to exchange an aggregate principal amount of up to $300,000,000 of its 7.125% Exchange Notes, Series A Due December 17, 2003, which have been registered under the Securities Act of 1933, as amended (the 'New Notes'), of the Company for a like principal amount of the issued and outstanding 7.125% Notes, Series A Due December 17, 2003 (the 'Old Notes') of the Company from the holders thereof. For each Old Note accepted for exchange, the holder of such Old Note will receive a New Note having a principal amount equal to that of the surrendered Old Note. The New Notes will bear interest from the most recent date to which interest has been paid on the Old Notes or, if no interest has been paid on the Old Notes, from December 15, 1998. Accordingly, if the relevant record date for interest payment occurs after the consummation of the Exchange Offer registered holders of New Notes on such record date will receive interest accruing from the most recent date to which interest has been paid or, if no interest has been paid, from December 15, 1998. If however, the relevant record date for interest payment occurs prior to the consummation of the Exchange Offer registered holders of Old Notes on such record date will receive interest from the most recent date to which interest has been paid or, if no interest has been paid, from December 15, 1998. Old Notes accepted for exchange will cease to accrue interest from and after the date of consummation of the Exchange Offer, except as set forth in the immediately preceding sentence. Holders of Old Notes whose Old Notes are accepted for exchange will not receive any payment in respect of interest on such Old Notes otherwise payable on any interest payment date the record date for which occurs on or after consummation of the Exchange Offer. This Letter is to be completed by a holder of Old Notes either if certificates are to be forwarded herewith or if a tender of certificates for Old Notes, if available, is to be made by book-entry transfer to the account maintained by the Exchange Agent at The Depository Trust Company (the 'Book-Entry Transfer Facility') pursuant to the procedures set forth in 'The Exchange Offer -- Book-Entry Transfer' section of the Prospectus, unless an agent's message is transmitted in lieu hereof. Holders of Old Notes whose certificates are not immediately available, or who are unable to deliver their certificates or confirmation of the book-entry tender of their Old Notes into the Exchange Agent's account at the Book-Entry Transfer Facility (a 'Book-Entry Confirmation') and all other documents required by this Letter to the Exchange Agent on or prior to the Expiration Date, must tender their Old Notes according to the guaranteed delivery procedures set forth in 'The Exchange Offer -- Guaranteed Delivery Procedures' section of the Prospectus. See Instruction 1. Delivery of documents to the Book-Entry Transfer Facility does not constitute delivery to the Exchange Agent. The undersigned has completed the appropriate boxes below and signed this Letter to indicate the action the undersigned desires to take with respect to the Exchange Offer. The undersigned further agrees and acknowledges that acceptance of any Old Notes by the Company and the issuance of New Notes in exchange thereof shall constitute full performance by the Company of its obligations under the registration rights agreement and that the Company shall have no further obligations or liabilities under that agreement (except in certain limited circumstances). List below the Old Notes to which this Letter relates. If the space provided below is inadequate, the certificate numbers and principal amount of Old Notes should be listed on a separate signed schedule affixed hereto.
DESCRIPTION OF OLD NOTES 1 2 3 - ---------------------------------------------------------------------------------------------------------------- AGGREGATE PRINCIPAL PRINCIPAL NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S) CERTIFICATE AMOUNT OF AMOUNT (PLEASE FILL IN, IF BLANK) NUMBER(S)* OLD NOTE(S) TENDERED** TOTAL
* Need not be completed if Old Notes are being tendered by book-entry transfer. **Unless otherwise indicated in this column, a holder will be deemed to have tendered ALL of the Old Notes represented by the Old Notes indicated in column 2. See Instruction 2. Old Notes tendered hereby must be in denominations of principal amount of $1,000 and any integral multiple thereof. See Instruction 1. [ ] CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH THE BOOK-ENTRY TRANSFER FACILITY AND COMPLETE THE FOLLOWING: Name of Tendering Institution ............................................. Account Number .............. Transaction Code Number .............. [ ] CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE FOLLOWING: Name(s) of Registered Holder(s) ........................................... Window Ticket Number (if any) ............................................. Date of Execution of Notice of Guaranteed Delivery ........................ Name of Institution which guaranteed delivery ............................. If Delivered by Book-Entry Transfer, Complete the Following: Account Number .............. Transaction Code Number .............. [ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO. Name: ..................................................................... Address: .................................................................. If the undersigned is not a broker-dealer, the undersigned represents that it is not engaged in, and does not intend to engage in, a distribution of New Notes. If the undersigned is a broker-dealer that will receive New Notes for its own account in exchange for Old Notes, it represents that the Old Notes to be exchanged for New Notes were acquired by it as a result of market-making or other trading activities and acknowledges that it will deliver a prospectus in connection with any resale of such New Notes; however, by so acknowledging and by delivering a prospectus in connection with any resale of such New Notes, the undersigned will not be deemed to admit that it is an 'underwriter' within the meaning of the Securities Act of 1933, as amended. PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY LADIES AND GENTLEMEN: Upon the terms and subject to the conditions of the Exchange Offer, the undersigned hereby tenders to the Company the aggregate principal amount of Old Notes indicated above. Subject to, and effective upon, the acceptance for exchange of Old Notes tendered hereby, the undersigned hereby sells, assigns and transfers to, or upon the order of, the Company all right, title and interest in and to such Old Notes as are being tendered hereby. The undersigned hereby represents and warrants that the undersigned has full power and authority to tender, sell, assign and transfer the Old Notes tendered hereby and that the Company will acquire good and unencumbered title thereto, free and clear of all liens, restrictions, charges and encumbrances and not subject to any adverse claim when the same are accepted by the Company. The undersigned hereby further represents that any New Notes acquired in exchange for Old Notes tendered hereby will have been acquired in the ordinary course of business of the person receiving such New Notes, whether or not such person is the undersigned, that neither the holder of such Old Notes nor any such other person has an arrangement or understanding with any person to participate in the distribution of such New Notes and that neither the holder of such Old Notes nor any such other person is an 'affiliate,' as defined in Rule 405 under the Securities Act of 1933, as amended (the 'Securities Act'), of the Company or AT&T Capital Corporation. The undersigned also acknowledges that this Exchange Offer is being made in reliance on interpretations by the staff of the Securities and Exchange Commission (the 'SEC'), as set forth in no-action letters issued to third parties, that New Notes issued in exchange for Old Notes pursuant to the Exchange Offer may be offered for resale, resold and otherwise transferred by holders thereof (other than any such holder that is an 'affiliate' of the Company or AT&T Capital Corporation within the meaning of Rule 405 under the Securities Act), without compliance with the registration and prospectus delivery provisions of the Securities Act, provided that such New Notes are acquired in the ordinary course of such holders' business and such holders have no arrangement with any person to participate in the distribution of such New Notes. However, the Company does not intend to request the SEC to consider, and the SEC has not considered the Exchange Offer in the context of a no-action letter and there can be no assurance that the staff of the SEC would make a similar determination with respect to the Exchange Offer as in other circumstances. If the undersigned is not a broker-dealer, the undersigned represents that it is not engaged in, and does not intend to engage in, a distribution of New Notes and has no arrangement or understanding to participate in a distribution of New Notes. If any holder is an affiliate of the Company or AT&T Capital Corporation, is engaged in or intends to engage in or has any arrangement or understanding with respect to the distribution of New Notes to be acquired pursuant to the Exchange Offer, such holder (i) could not rely on the applicable interpretations of the staff of the SEC and (ii) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale transaction. If the undersigned is a broker-dealer that will receive New Notes for its own account in exchange for Old Notes, it represents that the Old Notes to be exchanged for the New Notes were acquired by it as a result of market-making or other trading activities and acknowledges that it will deliver a prospectus in connection with any resale of such New Notes; however, by so acknowledging and by delivering a prospectus, the undersigned will not be deemed to admit that it is an 'underwriter' within the meaning of the Securities Act. The undersigned will, upon request, execute and deliver any additional documents deemed by the Company to be necessary or desirable to complete the sale, assignment and transfer of the Old Notes tendered hereby. All authority conferred or agreed to be conferred in this Letter and every obligation of the undersigned hereunder shall be binding upon the successors, assigns, heirs, executors, administrators, trustees in bankruptcy and legal representatives of the undersigned and shall not be affected by, and shall survive, the death or incapacity of the undersigned. This tender may be withdrawn only in accordance with the procedures set forth in 'The Exchange Offer -- Withdrawal Rights' section of the Prospectus. Unless otherwise indicated herein in the box entitled 'Special Issuance Instructions' below, please deliver the New Notes (and, if applicable, substitute certificates representing Old Notes for any Old Notes not exchanged) in the name of the undersigned or, in the case of a book-entry delivery of Old Notes, please credit the account indicated above maintained at the Book-Entry Transfer Facility. Similarly, unless otherwise indicated under the box entitled 'Special Delivery Instructions' below, please send the New Notes (and, if applicable, substitute certificates representing Old Notes for any Old Notes not exchanged) to the undersigned at the address shown above in the box entitled 'Description of Old Notes.' THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED 'DESCRIPTION OF OLD NOTES' ABOVE AND SIGNING THIS LETTER, WILL BE DEEMED TO HAVE TENDERED THE OLD NOTES AS SET FORTH IN SUCH BOX ABOVE. SPECIAL ISSUANCE INSTRUCTIONS (SEE INSTRUCTIONS 3 AND 4) To be completed ONLY if certificates for Old Notes not exchanged and/or New Notes are to be issued in the name of and sent to someone other than the person or persons whose signature(s) appear(s) on this Letter above, or if Old Notes delivered by book-entry transfer which are not accepted for exchange are to be returned by credit to an account maintained at the Book-Entry Transfer Facility other than the account indicated above. Issue: New Notes and/or Old Notes to: Name(s) ................................................................. (PLEASE TYPE OR PRINT) ......................................................................... (PLEASE TYPE OR PRINT) Address: ................................................................ ......................................................................... (ZIP CODE) (COMPLETE SUBSTITUTE FORM W-9) [ ] Credit unexchanged Old Notes delivered by book-entry transfer to the Book-Entry Transfer Facility account set forth below. (Book-Entry Transfer Facility Account Number, if applicable) ......................................................................... SPECIAL DELIVERY INSTRUCTIONS (SEE INSTRUCTIONS 3 AND 4) To be completed ONLY if certificates for Old Notes not exchanged and/or New Notes are to be sent to someone other than the person or persons who signature(s) appear(s) on this Letter above or to such person or persons at any address other than shown in the box entitled 'Description of Old Notes' on this Letter above. Mail: New Notes and/or Old Notes to: Name(s) ................................................................. (PLEASE TYPE OR PRINT) ......................................................................... (PLEASE TYPE OR PRINT) Address: ................................................................ ......................................................................... (ZIP CODE) IMPORTANT: THIS LETTER OR A FACSIMILE HEREOF OR AN AGENT'S MESSAGE IN LIEU THEREOF (TOGETHER WITH THE CERTIFICATES FOR OLD NOTES OR A BOOK-ENTRY CONFIRMATION AND ALL OTHER REQUIRED DOCUMENTS OR THE NOTICE OF GUARANTEED DELIVERY) MUST BE RECEIVED BY THE EXCHANGE AGENT PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE. PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL CAREFULLY BEFORE COMPLETING ANY BOX ABOVE. PLEASE SIGN HERE (TO BE COMPLETED BY ALL TENDERING HOLDERS) (COMPLETE ACCOMPANYING SUBSTITUTE FORM W-9 ON REVERSE SIDE) Date: ................................................................... , 1999 x ............................... ............................... , 1999 x ............................... ............................... , 1999 SIGNATURE(S) OF OWNER DATE Area Code and Telephone Number ................................................. If a holder is tendering any Old Notes, this Letter must be signed by the registered holder(s) as the name(s) appear(s) on the certificate(s) for the Old Notes or by any person(s) authorized to become registered holder(s) by endorsements and documents transmitted herewith or by a person whose name appears on a security position listing as a holder of Old Notes provided by the Book-Entry Transfer Facility (such persons to be deemed 'registered holders' or 'holders' for purposes of the Exchange Offer). If signature is by a trustee, executor, administrator, guardian, officer or other person acting in a fiduciary or representative capacity, please set forth full title. See Instruction 3. Name(s): ...................................................................... ............................................................................... (PLEASE TYPE OR PRINT) Capacity: ..................................................................... Address: ...................................................................... ............................................................................... (INCLUDING ZIP CODE) SIGNATURE GUARANTEE (IF REQUIRED BY INSTRUCTION 3) Signature(s) Guaranteed by an Eligible Institution: ...................................................... (AUTHORIZED SIGNATURE) ............................................................................... (TITLE) ............................................................................... (NAME AND FIRM) Dated: ................................................................. , 1999 INSTRUCTIONS FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER FOR THE 7.125% NOTES, SERIES A DUE DECEMBER 17, 2003 IN EXCHANGE FOR THE 7.125% EXCHANGE NOTES, SERIES A DUE DECEMBER 17, 2003 OF NEWCOURT CREDIT GROUP INC. 1. Delivery of this Letter and Notes; Guaranteed Delivery Procedures. This letter is to be completed by noteholders either if certificates are to be forwarded herewith or if tenders are to be made pursuant to the procedures for delivery by book-entry transfer set forth in 'The Exchange Offer -- Delivery of Notes to The Exchange Agent Through The Depository Trust Company' section of the Prospectus unless an agent's message in transmitted in lieu hereof. Certificates for all physically tendered Old Notes, or Book-Entry Confirmations, as the case may be, as well as a properly completed and duly executed Letter (or manually signed facsimile hereof) (or an agent's message in lieu hereof) and any other documents required by this Letter, must be received by the Exchange Agent at the address set forth herein prior to 5:00 p.m., New York City time, on the Expiration Date, or the tendering holder must comply with the guaranteed delivery procedures set forth below. Old Notes tendered hereby must be in denominations of principal amount of $1,000 and any integral multiple thereof. Noteholders whose certificates for Old Notes are not immediately available or who cannot deliver their certificates and all other required documents to the Exchange Agent on or prior to the Expiration Date, or who cannot complete the procedure for book-entry transfer on a timely basis, may tender their Old Notes pursuant to the guaranteed delivery procedures set forth in 'The Exchange Offer -- Facsimile and Guaranteed Delivery Procedures' section of the Prospectus. Pursuant to such procedures, (i) such tender must be made through an Eligible Institution (as defined herein), (ii) prior to the Expiration Date, the Exchange Agent must receive from such Eligible Institution a properly completed and duly executed Letter (or a facsimile thereof) and Notice of Guaranteed Delivery, substantially in the form provided by the Company (by telegram, telex, facsimile transmission, mail or hand delivery), setting forth the name and address of the holder of Old Notes and the amount of Old Notes tendered, stating that the tender is being made thereby and guaranteeing that within three New York Stock Exchange ('NYSE') trading days after the date of execution of the Notice of Guaranteed Delivery, the certificates for all physically tendered Old Notes, or a book-entry confirmation, and any other documents required by the Letter will be deposited by the Eligible Institution with the Exchange Agent, and (iii) the certificates for all physically tendered Old Notes, in proper form of transfer, or book-entry confirmation, as the case may be, and all other documents required by this Letter, are received by the Exchange Agent within three NYSE trading days after the date of execution of the Notice of Guaranteed Delivery. The method of delivery of this Letter, the Old Notes and all other required documents is at the election and risk of the tendering holders, but the delivery will be deemed made only when actually received or confirmed by the Exchange Agent. If Old Notes are sent by mail, it is suggested that the mailing be made sufficiently in advance of the Expiration Date to permit delivery to the Exchange Agent prior to 5:00 p.m., New York City time, on the Expiration Date. See 'The Exchange Offer' section of the Prospectus. 2. Partial Tenders (not applicable to noteholders who tender by book-entry transfer). If less than all of the Old Notes evidenced by a submitted certificate are to be tendered, the tendering holder(s) should fill in the aggregate principal amount of Old Notes to be tendered in the box above entitled 'Description of Old Notes -- Principal Amount Tendered.' A reissued certificate representing the balance of nontendered Old Notes will be sent to such tendering holder, unless otherwise provided in the appropriate box on this Letter, promptly after the Expiration Date. ALL OF THE OLD NOTES DELIVERED TO THE EXCHANGE AGENT WILL BE DEEMED TO HAVE BEEN TENDERED UNLESS OTHERWISE INDICATED. 3. Signatures on this Letter; Bond Powers and Endorsements; Guarantee of Signatures. If this Letter is signed by the registered holder of the Old Notes tendered hereby, the signature must correspond exactly with the name as written on the face of the Certificates or on a security position listing without any change whatsoever. If any tendered Old Notes are owned of record by two or more joint owners, all of such owners must sign this Letter. If any tendered Old Notes are registered in different names on several certificates, it will be necessary to complete, sign and submit as many separate copies of this Letter as there are different registrations of certificates. When this Letter is signed by the registered holder or holders of the Old Notes specified herein and tendered hereby, no endorsements of certificates or separate bond powers are required. If, however, the New Notes are to be issued, or any untendered Old Notes are to be reissued, to a person other than the registered holder, then endorsements of any certificates transmitted hereby or separate bond powers are required. Signatures on such certificate(s) must be guaranteed by an Eligible Institution. If this Letter is signed by a person other than the registered holder or holders of any certificate(s) specified herein, such certificate(s) must be endorsed or accompanied by appropriate bond powers, in either case signed exactly as the name or names of the registered holder or holders appear(s) on the certificate(s) and signatures on such certificate(s) must be guaranteed by an Eligible Institution. If this Letter or any certificates or bond powers are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, such persons should so indicate when signing, and, unless waived by the Company, proper evidence satisfactory to the Company of their authority to so act must be submitted. ENDORSEMENTS ON CERTIFICATES FOR OLD NOTES OR SIGNATURES ON BOND POWERS REQUIRED BY THIS INSTRUCTION 3 MUST BE GUARANTEED BY A FIRM WHICH IS A MEMBER OF A REGISTERED NATIONAL SECURITIES EXCHANGE OR A MEMBER OF THE NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC. OR BY A COMMERCIAL BANK OR TRUST COMPANY HAVING AN OFFICE OR CORRESPONDENT IN THE UNITED STATES (AN 'ELIGIBLE INSTITUTION'). SIGNATURES ON THIS LETTER NEED NOT BE GUARANTEED BY AN ELIGIBLE INSTITUTION, PROVIDED THE OLD NOTES ARE TENDERED: (I) BY A REGISTERED HOLDER OF OLD NOTES (WHICH TERM, FOR PURPOSES OF THE EXCHANGE OFFER, INCLUDES ANY PARTICIPANT IN THE BOOK-ENTRY TRANSFER FACILITY SYSTEM WHOSE NAME APPEARS ON A SECURITY POSITION LISTING AS THE HOLDER OF SUCH OLD NOTES) WHO HAS NOT COMPLETED THE BOX ENTITLED 'SPECIAL ISSUANCE INSTRUCTIONS' OR 'SPECIAL DELIVERY INSTRUCTIONS' ON THIS LETTER, OR (II) FOR THE ACCOUNT OF AN ELIGIBLE INSTITUTION. 4. Special Issuance and Delivery Instructions. Tendering holders of Old Notes should indicate in the applicable box the name and address to which New Notes issued pursuant to the Exchange Offer and/or substitute certificates evidencing Old Notes not exchanged are to be issued or sent, if different from the name or address of the person signing this Letter. In the case of issuance in a different name, the employer identification or social security number of the person named must also be indicated. Holders tendering Old Notes by book-entry transfer may request that Old Notes not exchanged be credited to such account maintained at the book-entry transfer facility as such noteholder may designate hereon. If no such instructions are given, such New Notes and Old Notes not exchanged will be returned to the name or address of the person signing this Letter. 5. Tax Identification Number. Federal income tax law generally requires that a tendering holder whose Old Notes are accepted for exchange must provide the Company (as payor) with such holder's correct Taxpayer Identification Number ('TIN') on Substitute Form W-9 below, which in the case of a tendering holder who is an individual, is his or her social security number. If the Company is not provided with the current TIN or an adequate basis for an exemption, such tendering holder may be subject to a $50 penalty imposed by the Internal Revenue Service. In addition, delivery to such tendering holder of New Notes may be subject to backup withholding in an amount equal to 31% of all reportable payments made after the exchange. If withholding results in an overpayment of taxes, a refund may be obtained. Exempt holders of Old Notes (including, among others, all corporations and certain foreign individuals) are not subject to these backup withholding and reporting requirements. See the enclosed Guidelines of Certification of Taxpayer Identification Number on Substitute Form W-9 (the 'W-9 Guidelines') for additional instructions. To prevent backup withholding, each tendering holder of Old Notes must provide its correct TIN by completing the Substitute Form W-9 set forth below, certifying that the TIN provided is correct (or that such holder is awaiting a TIN) and that (i) the holder is exempt from backup withholding, or (ii) the holder has not been notified by the Internal Revenue Service that such holder is subject to backup withholding as a result of a failure to report all interest or dividends or (iii) the Internal Revenue Service has notified the holder that such holder is no longer subject to backup withholding. If the tendering holder of Old Notes is a nonresident alien or foreign entity not subject to backup withholding, such holder must give the Company a completed Form W-8, Certificate of Foreign Status. These forms may be obtained from the Exchange Agent. If the Old Notes are in more than one name or are not in the name of the actual owner, such holder should consult the W-9 Guidelines for information on which TIN to report. If such holder does not have a TIN, such holder should consult the W-9 Guidelines for instructions on applying for a TIN, check the box in Part 2 of the Substitute Form W-9 and write 'applied for' in lieu of its TIN. Note: Checking this box and writing 'applied for' on the form means that such holder has already applied for a TIN or that such holder intends to apply for one in the near future. If such holder does not provide its TIN to the Company within 60 days, backup withholding will begin and continue until such holder furnishes its TIN to the Company. 6. Transfer Taxes. The Company will pay all transfer taxes, if any, applicable to the transfer of Old Notes to it or its order pursuant to the Exchange Offer. If however, New Notes and/or substitute Old Notes not exchanged are to be delivered to, or are to be registered or issued in the name of, any person other than the registered holder of the Old Notes tendered hereby, or if tendered Old Notes are registered in the name of any person other than the person signing this Letter, or if a transfer tax is imposed for any reason other than the transfer of Old Notes to the Company or its order pursuant to the Exchange Offer, the amount of any such transfer taxes (whether imposed on the registered holder or any other persons) will be payable by the tendering holder. If satisfactory evidence of payment of such taxes or exemption therefrom is not submitted herewith, the amount of such transfer taxes will be billed directly to such tendering holder. EXCEPT AS PROVIDED IN THIS INSTRUCTION 6, IT WILL NOT BE NECESSARY FOR TRANSFER TAX STAMPS TO BE AFFIXED TO THE OLD NOTES SPECIFIED IN THIS LETTER. 7. Waiver of Conditions. The Company reserves the absolute right to waive satisfaction of any or all conditions enumerated in the Prospectus. 8. No Conditional Tenders. No alternative, conditional, irregular or contingent tenders will be accepted. All tendering holders of Old Notes, by execution of this Letter or transmission of an agent's message in lieu thereof, shall waive any right to receive notice of the acceptance of their Old Notes for exchange. Neither the Company, the Exchange Agent nor any other person is obligated to give notice of any defect or irregularity with respect to any tender of Old Notes nor shall any of them incur any liability for failure to give any such notice. 9. Mutilated, Lost, Stolen or Destroyed Old Notes. Any holder whose Old Notes have been mutilated, lost, stolen or destroyed should contact the Exchange Agent at the address indicated above for further instructions. 10. Requests for Assistance or Additional Copies. Questions relating to the procedure for tendering, as well as requests for additional copies of the Prospectus and this Letter, may be directed to the Exchange Agent, at the address and telephone number indicated above. TO BE COMPLETED BY ALL TENDERING HOLDERS (SEE INSTRUCTION 5) PAYOR'S NAME: NEWCOURT CREDIT GROUP INC. PART 1 -- PLEASE PROVIDE YOUR TIN IN THE BOX AT TIN: ............................... SUBSTITUTE RIGHT AND CERTIFY BY SIGNING AND DATING BELOW. Social Security Number or FORM W-9 Employer Identification Number DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE PAYOR'S REQUEST FOR TAXPAYER IDENTIFICATION NUMBER ('TIN') AND CERTIFICATION PART 2 -- TIN Applied For [ ] CERTIFICATION: UNDER THE PENALTIES OF PERJURY, I CERTIFY THAT: (1) the number shown on this form is my correct Taxpayer Identification Number (or I am waiting for a number to be issued to me). (2) I am not subject to backup withholding either because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (the 'IRS') that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding, and (3) any other information provided on this form is true and correct. SIGNATURE .................................. DATE .................................. You must cross out item (2) of the above certification if you have been notified by the IRS that you are subject to backup withholding because of underreporting of interest or dividends on your tax return and you have not been notified by the IRS that you are no longer subject to backup withholding.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN PART 2 OF SUBSTITUTE FORM W-9 CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER I certify under penalties of perjury that a taxpayer identification number has not been issued to me, and either (a) I have mailed or delivered an application to receive a taxpayer identification number to the appropriate Internal Revenue Service Center or Social Security Administration Office or (b) I intend to mail or deliver an application in the near future. I understand that if I do not provide a taxpayer identification number by the time of the exchange, thirty-one (31%) percent of all reportable payments made to me thereafter will be withheld until I provide a number. ...................................... ...................................... Signature Date EX-99 18 EXHIBIT 99B NOTICE OF GUARANTEED DELIVERY FOR NEWCOURT CREDIT GROUP INC. 7.125% NOTES, SERIES A DUE DECEMBER 17, 2003 This form or one substantially equivalent hereto must be used to accept the Exchange Offer of Newcourt Credit Group Inc. (the 'Company') made pursuant to the Prospectus, dated August 12, 1999 (the 'Prospectus'), if certificates for the outstanding 7.125% Notes, Series A Due December 17, 2003 of the Company (the 'Old Notes') are not immediately available or if the procedure for book-entry transfer cannot be completed on a timely basis or time will not permit all required documents to reach the Company prior to 5:00 p.m., New York City time, on the Expiration Date of the Exchange Offer. Such form may be delivered or transmitted by telegram, telex, facsimile transmission, mail or hand delivery to The Chase Manhattan Bank (the 'Exchange Agent') as set forth below. In addition, in order to utilize the guaranteed delivery procedure to tender Old Notes pursuant to the Exchange Offer, a completed, signed and dated Letter of Transmittal (or facsimile thereof) must also be received by the Exchange Agent prior to 5:00 p.m., New York City time, on the Expiration Date. Capitalized terms not defined herein are defined in the Prospectus. Delivery To: The Chase Manhattan Bank, Exchange Agent By Mail, Overnight Courier, Hand Delivery or Facsimile: The Chase Manhattan Bank 55 Water Street New York, New York 10041 Attention: Carlos Esteves Phone: (212) 638-0828 Fax: (212) 638-7380 DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE, OR TRANSMISSION HEREOF VIA FACSIMILE OTHER THAN AS SET FORTH ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY. Ladies and Gentlemen: Upon the terms and conditions set forth in the Prospectus and the accompanying Letter of Transmittal, the undersigned hereby tenders to the Company the principal amount of Old Notes set forth below, pursuant to the guaranteed delivery procedure described in 'The Exchange Offer -- Facsimile and Guaranteed Delivery Procedures' section of the Prospectus. Principal Amount of Old Notes Tendered:* $_______________________________________ Certificate Nos. (if available): ________________________________________ If Old Notes will be delivered by book-entry transfer to The Depository Trust Company, provide account number. Total Principal Amount Represented by Old Notes Certificate(s): $_______________________________________ Account Number _________________ ALL AUTHORITY HEREIN CONFERRED OR AGREED TO BE CONFERRED SHALL SURVIVE THE DEATH OR INCAPACITY OF THE UNDERSIGNED AND EVERY OBLIGATION OF THE UNDERSIGNED HEREUNDER SHALL BE BINDING UPON THE HEIRS, PERSONAL REPRESENTATIVES, SUCCESSORS AND ASSIGNS OF THE UNDERSIGNED. - ------------------------ * Must be in denominations of principal amount of $1,000 and any integral multiple thereof. PLEASE SIGN HERE X ____________________________________ __________________ X ____________________________________ __________________ Signature(s) of Owner(s) Date or Authorized Signatory Area Code and Telephone Number: _________________________ Must be signed by the holder(s) of Old Notes as their name(s) appear(s) on certificates for Old Notes or on a security position listing, or by person(s) authorized to become registered holder(s) by endorsement and documents transmitted with this Notice of Guaranteed Delivery. If signature is by a trustee, executor, administrator, guardian, attorney-in-fact, officer or other person acting in a fiduciary or representative capacity, such person must set forth his or her full title below. PLEASE PRINT NAME(S) AND ADDRESS(ES) Name(s): _________________________________________________________________ _________________________________________________________________ Capacity: _________________________________________________________________ _________________________________________________________________ Address(es): _________________________________________________________________ _________________________________________________________________ 2 GUARANTEE The undersigned, a member of a registered national securities exchange, or a member of the National Association of Securities Dealers, Inc., or a commercial bank or trust company having an office or correspondent in the United States, hereby guarantees that the certificates representing the principal amount of Old Notes tendered hereby in proper form for transfer, or timely confirmation of the book-entry transfer of such Old Notes into the Exchange Agent's account at The Depository Trust Company pursuant to the procedures set forth in 'The Exchange Offer -- Facsimile and Guaranteed Delivery Procedures' section of the Prospectus, together with a properly completed and duly executed Letter of Transmittal (or a manually signed facsimile thereof or an agent's message in lieu thereof) with any required signature guarantee and any other documents required by the Letter of Transmittal, will be received by the Exchange Agent at the address set forth above, no later than three New York Stock Exchange trading days after the date of execution hereof. _____________________________________________ _______________________________________________ NAME OF FIRM AUTHORIZED SIGNATURE _____________________________________________ _______________________________________________ ADDRESS TITLE _____________________________________________ NAME: __________________________________________ ZIP CODE (PLEASE TYPE OR PRINT) Area Code and Tel. No._______________________ Dated:_________________________________________
NOTE: DO NOT SEND CERTIFICATES FOR OLD NOTES WITH THIS FORM. CERTIFICATES FOR OLD NOTES SHOULD ONLY BE SENT WITH YOUR LETTER OF TRANSMITTAL. 3 EX-99 19 EXHIBIT 99C NEWCOURT CREDIT GROUP INC. OFFER FOR ALL OUTSTANDING 7.125% NOTES, SERIES A DUE DECEMBER 17, 2003 IN EXCHANGE FOR 7.125% EXCHANGE NOTES, SERIES A DUE DECEMBER 17, 2003 To: BROKERS, DEALERS, COMMERCIAL BANKS, TRUST COMPANIES AND OTHER NOMINEES: Newcourt Credit Group Inc. (the 'Company') is offering, upon and subject to the terms and conditions set forth in the Prospectus, dated August 12, 1999 (the 'Prospectus'), and the enclosed Letter of Transmittal (the 'Letter of Transmittal'), to exchange (the 'Exchange Offer') its 7.125% Exchange Notes, Series A, Due December 17, 2003, which have been registered under the Securities Act of 1933, as amended, for its outstanding 7.125% Notes, Series A Due December 17, 2003 (the 'Old Notes'). The Exchange Offer is being made in order to satisfy certain obligations of the Company contained in the Registration Rights Agreement dated December 15, 1998, by and among the Company, AT&T Capital Corporation and the initial purchasers referred to therein. We are requesting that you contact your clients for whom you hold Old Notes regarding the Exchange Offer. For your information and for forwarding to your clients for whom you hold Old Notes registered in your name or in the name of your nominee, or who hold Old Notes registered in their own names, we are enclosing the following documents: 1. The Prospectus dated August 12, 1999; 2. The Letter of Transmittal (including Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9) for your use and for the information of your clients; 3. A Notice of Guaranteed Delivery to be used to accept the Exchange Offer if certificates for Old Notes are not immediately available or time will not permit all required documents to reach the Exchange Agent prior to the Expiration Date (as defined below) or if the procedure for book-entry transfer cannot be completed on a timely basis; 4. A form of letter which may be sent to your clients for whose account you hold Old Notes registered in your name or the name of your nominee, with space provided for obtaining such clients' instructions with regard to the Exchange Offer; and 5. A return envelope addressed to The Chase Manhattan Bank, the Exchange Agent for the Old Notes. YOUR PROMPT ACTION IS REQUESTED. THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON WEDNESDAY, SEPTEMBER 15, 1999, UNLESS EXTENDED BY THE COMPANY (THE 'EXPIRATION DATE'). OLD NOTES TENDERED PURSUANT TO THE EXCHANGE OFFER MAY BE WITHDRAWN AT ANY TIME BEFORE THE EXPIRATION DATE. To participate in the Exchange Offer, a duly executed and properly completed Letter of Transmittal (or facsimile thereof or an agent's message in lieu thereof), with any required signature guarantees and any other required documents, should be sent to the Exchange Agent and certificates representing the Old Notes or a book-entry confirmation should be delivered to the Exchange Agent, all in accordance with the instructions set forth in the Letter of Transmittal and the Prospectus. If holders of Old Notes wish to tender, but it is impracticable for them to forward their certificates for Old Notes prior to the expiration of the Exchange Offer or to comply with the book-entry transfer procedures on a timely basis, a tender may be effected by following the guaranteed delivery procedures described in the Prospectus under 'The Exchange Offer -- Facsimile and Guaranteed Delivery Procedures.' The Company will, upon request, reimburse brokers, dealers, commercial banks and trust companies for reasonable and necessary costs and expenses incurred by them in forwarding the Prospectus and the related documents to the beneficial owners of Old Notes held by them as nominee or in a fiduciary capacity. The Company will pay or cause to be paid all stock transfer taxes applicable to the exchange of Old Notes pursuant to the Exchange Offer, except as set forth in Instruction 6 of the Letter of Transmittal. Any inquiries you may have with respect to the Exchange Offer, or requests for additional copies of the enclosed materials, should be directed to The Chase Manhattan Bank, the Exchange Agent for the Old Notes, at its address and telephone number set forth on the front of the Letter of Transmittal. Very truly yours, NEWCOURT CREDIT GROUP INC. NOTHING HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU OR ANY PERSON AS AN AGENT OF THE COMPANY OR THE EXCHANGE AGENT, OR AUTHORIZE YOU OR ANY OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENTS ON BEHALF OF EITHER OF THEM WITH RESPECT TO THE EXCHANGE OFFER, EXCEPT FOR STATEMENTS EXPRESSLY MADE IN THE PROSPECTUS OR THE LETTER OF TRANSMITTAL. Enclosures 2 EX-99 20 EXHIBIT 99D NEWCOURT CREDIT GROUP INC. OFFER FOR ALL OUTSTANDING 7.125% NOTES, SERIES A DUE DECEMBER 17, 2003 IN EXCHANGE FOR 7.125% EXCHANGE NOTES, SERIES A DUE DECEMBER 17, 2003 TO OUR CLIENTS: Enclosed for your consideration is a Prospectus, dated August 12, 1999 (the 'Prospectus'), and the related Letter of Transmittal (the 'Letter of Transmittal'), relating to the offer (the 'Exchange Offer') of Newcourt Credit Group Inc. (the 'Company') to exchange its 7.125% Exchange Notes, Series A Due December 17, 2003, which have been registered under the Securities Act of 1933, as amended (the 'New Notes'), for its outstanding 7.125% Notes, Series A Due December 17, 2003 (the 'Old Notes'), upon the terms and subject to the conditions described in the Prospectus and the Letter of Transmittal. The Exchange Offer is being made in order to satisfy certain obligations of the Company contained in the Registration Rights Agreement dated December 15, 1998, by and among the Company, AT&T Capital Corporation and the initial purchasers referred to therein. This material is being forwarded to you as the beneficial owner of the Old Notes carried by us in your account but not registered in your name. A TENDER OF SUCH OLD NOTES MAY ONLY BE MADE BY US AS THE HOLDER OF RECORD AND PURSUANT TO YOUR INSTRUCTIONS. Accordingly, we request instructions as to whether you wish us to tender on your behalf the Old Notes held by us for your account, pursuant to the terms and conditions set forth in the enclosed Prospectus and Letter of Transmittal. Your instructions should be forwarded to us as promptly as possible in order to permit us to tender the Old Notes on your behalf in accordance with the provisions of the Exchange Offer. The Exchange Offer will expire at 5:00 p.m., New York City time, on Wednesday, September 15, 1999, unless extended by the Company. Any Old Notes tendered pursuant to the Exchange Offer may be withdrawn at any time before the Expiration Date. Your attention is directed to the following: 1. The Exchange Offer is for any and all Old Notes. 2. The Exchange Offer is subject to certain conditions set forth in the Prospectus in the section captioned 'The Exchange Offer -- Conditions to the Exchange Offer.' 3. Any transfer taxes incident to the transfer of Old Notes from the holder to the Company will be paid by the Company, except as otherwise provided in the Instructions in the Letter of Transmittal. 4. The Exchange Offer expires at 5:00 p.m., New York City time, on Wednesday, September 15, 1999, unless extended by the Company. If you wish to have us tender your Old Notes, please so instruct us by completing, executing and returning to us the instruction form on the back of this letter. THE LETTER OF TRANSMITTAL IS FURNISHED TO YOU FOR INFORMATION ONLY AND MAY NOT BE USED DIRECTLY BY YOU TO TENDER OLD NOTES. INSTRUCTIONS WITH RESPECT TO THE EXCHANGE OFFER The undersigned acknowledge(s) receipt of your letter and the enclosed material referred to therein relating to the Exchange Offer made by Newcourt Credit Group Inc. with respect to its Old Notes. This will instruct you to tender the Old Notes held by you for the account of the undersigned, upon and subject to the terms and conditions set forth in the Prospectus and the related Letter of Transmittal. Please tender the Old Notes held by you for my account as indicated below:
AGGREGATE PRINCIPAL AMOUNT OF OLD NOTES --------------------------------------- 7.125% Notes, Series A Due December 17, 2003... ______________________________________ [ ] Please do not tender any Old Notes held by you for my account. Date: ___________________________, 1999 ______________________________________ ______________________________________ SIGNATURE(S) ______________________________________ ______________________________________ ______________________________________ PLEASE PRINT NAME(S) HERE ______________________________________ ______________________________________ ADDRESS(ES) ______________________________________ AREA CODE AND TELEPHONE NUMBER ______________________________________ TAX IDENTIFICATION OR SOCIAL SECURITY NO(S).
None of the Old Notes held by us for your account will be tendered unless we receive written instructions from you to do so. Unless a specific contrary instruction is given in the space provided, your signature(s) hereon shall constitute an instruction to us to tender all the Old Notes held by us for your account. 2 -----END PRIVACY-ENHANCED MESSAGE-----