EXHIBIT 1A
AT&T CAPITAL CORPORATION
FORM OF NOTE UNDERWRITING AGREEMENT
, 1998
X.X. Xxxxxx Securities Inc.
As Representative of the Several Underwriters
c/o X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Each of the undersigned, AT&T Capital Corporation (the "Company") and
Newcourt Credit Group Inc. ("Newcourt"), hereby confirms its agreement with the
several Underwriters named in Schedule I hereof, as follows:
1. Underwriters and Representatives. The term "Underwriters" as used
herein shall mean the several persons, firms and corporations named in Schedule
I hereof, and the term "Underwriter" shall mean any one of such persons, firms
or corporations. The terms "Underwriters," "persons," "firms" and "corporations"
as used herein shall include the singular of such terms as well as the plural.
The term "Representative" shall mean the representative to whom this Agreement
is addressed, who, by signing this Agreement, represents that it has been
authorized by each Underwriter to execute this Agreement on behalf of such
Underwriter and to act for such Underwriter in the manner herein provided. All
obligations of the Underwriters hereunder are several and not joint.
2. Description of Notes. The Company proposes to issue $750,000,000
principal amount of its Medium-Term Notes, Series F (the "Notes") under an
Indenture dated as of April 1, 1998, (as amended, restated or supplemented from
time to time, the "Indenture"), between the Company, Newcourt and The Chase
Manhattan Bank, Trustee (the "Trustee"). The Notes will be guaranteed as to
payment of principal, premium, if any, and interest pursuant to the guarantee
dated as of April 1, 1998 made by Newcourt to the Trustee (the "Guarantee"). The
Notes and the Guarantee are more fully described in the Registration Statement.
The term "Registration Statement" means the joint registration
statement on Form S-3/Form F-9 (File No. 333-48415) relating to the Notes and
the Guarantee (including a prospectus and prospectus supplement, each as amended
to the date hereof, relating to the Notes and the Guarantee) which has become
effective under the Securities Act of 1933 (the "Act"). The term "Basic
Prospectus" means the prospectus included in the Registration Statement. The
term "Prospectus" means the Basic Prospectus together with the prospectus
supplement specifically relating to the
Notes and Guarantee, as filed with, or delivered for filing to, the Commission
pursuant to Rule 424 under the Act. The term "preliminary prospectus" means any
preliminary prospectus supplement specifically relating to the Notes and
Guarantee together with the Basic Prospectus. As used herein, Registration
Statement, Basic Prospectus, Prospectus, and preliminary prospectus shall
include in each case the material, if any, incorporated by reference therein.
3. Representations and Warranties of the Company. The Company
and Newcourt jointly and severally represent and warrant to the several
Underwriters that:
(a) The Company and Newcourt have filed with the Commission the
Registration Statement, which has become effective under the
Act, and the Company and Newcourt have filed or will file
with, or has delivered or will deliver for filing to, the
Commission a prospectus supplement specifically relating to
the Notes and Guarantee pursuant to Rule 424 under the Act.
(b)(i) Each part of the Registration Statement (including the
material incorporated by reference therein) when such part
became effective, 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 not
misleading, (ii) each preliminary prospectus, if any, relating
to the Notes and the Guarantee, filed pursuant to Rule 424
under the Act, complied when so filed in all material respects
with the Act and the Trust Indenture Act of 1939 (the "Trust
Indenture Act") and the applicable rules and regulations of
the Commission thereunder, (iii) the Registration Statement
and the Prospectus comply and, as amended or supplemented, if
applicable, will comply in all material respects with the Act
and the Trust Indenture Act and the applicable rules and
regulations of the Commission thereunder and (iv) the
Registration Statement and the Prospectus do not and, as
amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Company
makes no representations or warranties as to the information
contained in or omitted from the Registration Statement, any
preliminary prospectus or the Prospectus in reliance upon
information furnished in writing to the Company by an
Underwriter through X.X. Xxxxxx Securities Inc. specifically
for inclusion therein or as to any statements in or omissions
from the Statement of Eligibility and Qualification of the
Trustee under the Indenture.
(c) Each document or portion thereof incorporated by reference in
the Prospectus complied when filed with the Commission in all
material respects with the provisions of the Securities
Exchange Act of 1934 (the "Exchange Act"), together with the
applicable instructions, rules and regulations of the
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Commission thereunder, and each document, if any, hereafter
filed under the Exchange Act and so incorporated by reference
in the Prospectus will comply when so filed in all material
respects with the requirements of such Exchange Act and such
applicable instructions, rules and regulations.
(d) The accountants who have certified or shall certify the
financial statements filed and to be filed with the Commission
as parts of the Registration Statement and the Prospectus are
public or certified accountants, independent with respect to
the Company and Newcourt, as required by the Act and the rules
and regulations of the Commission thereunder.
(e) The financial statements, and the related notes thereto,
included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the consolidated
financial position of the Company and Newcourt and their
respective 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; said
financial statements have been prepared in conformity with
generally accepted accounting principles applied on a
consistent basis, and the supporting schedules included or
incorporated by reference in the Registration Statement
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
Registration Statement and the Prospectus, have been prepared
in accordance with the applicable requirements of the Act and
Exchange Act, as applicable, and is based upon good faith
estimates and assumptions believed by the Company and Newcourt
to be reasonable.
(f) Since the respective dates as of which information is given in
the Registration Statement and Prospectus, there has not been
any change in the capital stock or long-term debt of the
Company or Newcourt 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 the
Company or Newcourt and their respective subsidiaries, taken
as a whole, otherwise than as set forth or contemplated in the
Prospectus; and except as set forth or contemplated in the
Prospectus neither the Company, Newcourt nor any of their
respective subsidiaries has entered into any transaction or
agreement (whether or not in the ordinary course of business)
material to the Company and its subsidiaries and Newcourt and
its subsidiaries, each taken as a whole.
(g) The Indenture has been duly authorized, executed and delivered
by the Company and constitutes the valid and binding agreement
of the Company,
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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 Prospectus.
(h) The Guarantee has been duly authorized, executed and delivered
by the Company and constitutes the 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); and (ii) the Guarantee conforms to the
descriptions thereof contained in the Prospectus.
(i) Each of the Company, Newcourt and their respective
subsidiaries have been duly incorporated, is validly existing
and in good standing under the laws of its respective
jurisdiction of incorporation, is duly qualified to do
business and in good standing as a foreign corporation in each
jurisdiction in which its respective ownership of properties
or the conduct of its respective businesses requires such
qualification (except to the extent that the failure to be so
qualified or be in good standing would not have a material
adverse effect on the Company, Newcourt and their respective
subsidiaries taken as a whole), 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 Prospectus.
(j) Neither the Company, Newcourt 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 be
material to the Company, Newcourt and their respective
subsidiaries taken as a whole.
(k) The execution, delivery and performance of this Agreement by
the Company and Newcourt and the execution, delivery and
performance by Newcourt 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
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the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company, Newcourt or any
of their respective subsidiaries is a party or by which the
Company, Newcourt or any of their respective subsidiaries is
bound or to which any of the property or assets of the
Company, Newcourt 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, Newcourt
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, Newcourt or any
of their respective subsidiaries or any of their properties or
assets, the effect of which breach, violation or default would
be material to the Company, Newcourt and their respective
subsidiaries taken as a whole; and except for the registration
of the Notes and the Guarantee under the Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and
applicable state securities laws in connection with the
purchase and distribution of the Notes and the Guarantee by
the Underwriters, 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 Newcourt of, compliance by the
Company and Newcourt 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 be material to the Company,
Newcourt and their respective subsidiaries taken as a whole.
(l) The Company is in compliance with all provisions of Section 1
of Laws of Florida, Chapter 92-128, AN ACT RELATING TO
DISCLOSURE OF DOING BUSINESS WITH CUBA.
4. Purchase And Sale of Notes. On the basis of the representations and
warranties and on the terms and subject to the conditions herein set forth, each
of the Underwriters agrees to purchase from the Company, severally and not
jointly, and on the terms and subject to the conditions herein set forth the
Company agrees to sell to each of the Underwriters, severally and not jointly,
the principal amount of Notes set forth opposite its name in Schedule I, at %
of the principal amount thereof, together with accrued interest, if any, thereon
from , 199 to the date of payment and delivery.
The terms of the public offering of the Notes are as set forth in the
Prospectus.
5. Closing. Delivery of, and payment of the purchase price for, the
Notes which the Underwriters severally agree to purchase shall be made at the
office of Winston & Xxxxxx, New
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York, New York, at 10:00 a.m.(1) on , 1998 or at other such other place
or time on the same or such other day as shall be agreed upon by the Company and
the Representative. The time and date for such payment and delivery are herein
referred to as the "time of closing". At the time of closing, the Company will
deliver the Notes, registered in such names and in such authorized denominations
as the Representative shall have specified not less than two business days prior
to the day of closing, against payment therefor as provided in Section 6 hereof,
to the Representative for the respective accounts of the Underwriters.
The Company agrees to make the Notes available to the
Representative for examination on behalf of the Underwriters at the office of
Winston & Xxxxxx, New York, New York, not later than 2:00 p.m. on the business
day next preceding the day of closing.
If, for any reason (other than termination of this Agreement
in accordance with the provisions of Section 8, 9 or 10 hereof), one or more of
the Underwriters shall fail or refuse to pay for the Notes it has or they have
agreed to purchase (any such Underwriter being hereinafter referred to as a
"defaulting Underwriter"), and the aggregate principal amount of the Notes which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate principal amount of the
Notes, the remaining Underwriters 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 Underwriters (or in such other proportion
as the Representative shall specify) to purchase the Notes which the defaulting
Underwriter or Underwriters agreed but failed or refused to purchase; provided
that in no event shall the principal amount of Notes that any Underwriter has
agreed to purchase pursuant to Section 5 be increased pursuant to this Section 5
by an amount in excess of one-tenth of such principal amount of such Notes
without the written consent of such Underwriter. In the event that any
Underwriter or Underwriters 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 [ ] hours after such default,
this Agreement will terminate without liability on the part of any of the
non-defaulting Underwriters or of the Company. In any such case either the
Representative or the Company shall have the right to postpone the Closing Date,
but in no event for longer than seven days, in order that the required changes,
if any, in the Registration Statement and in the Prospectus or in any other
documents or arrangements may be effected. Except to the extent provided in
subparagraphs (d) and (g) of Section 7 hereof, termination of this Agreement
pursuant to this Section 5 shall be without any liability on the part of the
Company or any Underwriter other than a defaulting Underwriter. Any action taken
under this Section shall not relieve any defaulting Underwriter from liability
in respect of any default of such Underwriter under this Agreement.
--------
(1) Times mentioned herein are New York time.
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6. Payment. At the time of closing, the Company will cause the Notes to
be delivered to the Representative for the account of each Underwriter against
payment of the purchase price of such Notes by wire transfer of next-day funds
to an account specified by the Company at least two business days prior to the
time of closing or by certified or official bank check or checks payable to the
order of the Company in New York Clearing House or other next-day funds.
7. Covenants of The Company and Newcourt. The Company and Newcourt
jointly and severally agree as follows:
(a) Prior to the end of the period specified in Section 7(h),
neither the Company nor Newcourt will file any amendment or
supplement to the Registration Statement or the Prospectus of
which the Representative shall not previously have been
advised or which shall be disapproved by Winston & Xxxxxx,
which firm is acting as counsel for the Underwriters, and will
not file any document pursuant to the Exchange Act which is
deemed to be incorporated by reference in the Prospectus of
which Winston & Xxxxxx shall not previously have been advised.
(b) The Company or Newcourt will deliver to the Representative a
reasonable number of copies of the Registration Statement as
originally filed (including documents incorporated by
reference therein) and of all amendments thereto up to the
time of closing. Promptly upon the filing with the Commission
of any amendment to the Registration Statement or of any
supplement to or amendment of the Prospectus, the Company or
Newcourt will deliver to the Representative a reasonable
number of copies thereof. The terms "supplement" and
"amendment" or "amend", as used in this Agreement, shall
include all documents filed by the Company or Newcourt with
the Commission subsequent to the date of the Basic Prospectus,
pursuant to the Exchange Act, which are deemed to be
incorporated by reference in the Prospectus.
(c) The Company or Newcourt will advise the Representative
promptly (confirming such advice in writing) of any official
request made by the Commission for an amendment to the
Registration Statement or Prospectus or for additional
information with respect thereto and of any official notice of
the institution of proceedings for, or of the entry of, a stop
order suspending the effectiveness of the Registration
Statement. Each of the Company and Newcourt will use its best
efforts to prevent the issuance of any such stop order and, if
such a stop order should be entered, the Company and Newcourt
will make every reasonable effort to obtain the lifting or
removal thereof as soon as possible.
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(d) The Company or Newcourt will pay all expenses in connection
with the preparation and filing of the Registration Statement,
the preparation of the Indenture and Guarantee, the rating of
the Notes, the issuance and delivery of the Notes and the
printing of the copies of any preliminary prospectus and of
the Prospectus to be furnished as provided in the first
sentence of subparagraph (h) below; and will pay any taxes on
the issuance of the Notes, but will not pay any transfer
taxes. The Company and Newcourt will not be required to pay
any amount for any expenses of the Representative or any of
the Underwriters, except the cost of mailing to Underwriters
copies of the Registration Statement and all amendments
thereto (including documents incorporated by reference), the
preliminary prospectuses and the Prospectus, and except as
provided by subparagraph (g) below, and provided that if no
Notes are delivered to and purchased by the Underwriters
hereunder for any reason other than a default by one or more
of the Underwriters or the occurrence of any of the events
referred to in Section 10 hereof, the Company, in addition to
any payment provided for by subparagraph (g) of this Section
7, will reimburse the Representative for the reasonable
out-of-pocket expenses of the Underwriters, not exceeding
[$50,000], and for the fees and disbursements of Winston &
Xxxxxx, the Underwriters agreeing to pay such expenses, fees
and disbursements in any other event. Neither the Company nor
Newcourt will not in any event be liable to any of the several
Underwriters for damages on account of loss of anticipated
profits.
(e) The Company and Newcourt will apply the proceeds from the sale
of the Notes as set forth under the heading "Use of Proceeds"
appearing in the Prospectus.
(f) So long as any of the Notes shall remain outstanding, the
Company or Newcourt will furnish to the Representative, upon
request and in reasonable quantities for distribution to the
Underwriters, copies of such documents, reports and other
information as may be required to be furnished to noteholders
under the Indenture.
(g) The Company and Newcourt will use its 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 Newcourt shall be required to qualify
as a foreign corporation or to file a general consent to
service of process in any jurisdiction or to pay, or to incur,
or to reimburse the Representative for, any such expenses if
no Notes are delivered to and purchased by the Underwriters
hereunder because
8
of a default by one or more of the Underwriters or the
termination of this Agreement pursuant to Section 10 hereof.
(h) The Company will furnish to the Representative, upon request
and in reasonable quantities for distribution to the
Underwriters, as many copies of the Prospectus as the
Representative may reasonably request for the purposes
contemplated by the Act. If, during such period after the
first date of the public offering of the Notes as, in the
opinion of the counsel for the Underwriters, the Prospectus is
required by law to be delivered, any event shall occur which
should be set forth in a supplement to or an amendment of the
Prospectus in order to make the Prospectus not misleading,
the Company or Newcourt, as applicable, will, upon the
occurrence of each such event, forthwith at its expense,
either (i) prepare and furnish to the Representative,
upon request and in reasonable quantities for distribution to
the Underwriters, as many copies as the Representative may
reasonably request for the purposes contemplated by the Act of
a Supplement to or amendment of the Prospectus which will
supplement or amend the Prospectus or (ii) file with the
Commission documents deemed incorporated by reference in the
Prospectus, in either case so that as supplemented or amended,
it will not at the date of such supplement or amendment
contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the
statement therein not misleading. For the purpose of this
subparagraph (h), the Company and Newcourt will furnish such
reasonable information with respect to itself as the
Representative may from time to time request. Notwithstanding
any of the other provisions of this subparagraph (h), neither
the Company nor Newcourt shall be under any obligation to
furnish any supplement to or amendment of the Prospectus on
account of any change in, or to include in any amended
prospectus any change in, the information furnished to the
Company or Newcourt by any Underwriter or Underwriters or by
the Representative on its or their behalf for use in the
Prospectus, unless the Representative has advised the Company
and Newcourt in writing of such change and has requested the
Company or Newcourt at the expense of such Underwriter or
Underwriters to prepare a supplement to or amendment of the
Prospectus to reflect such change or to include such change in
an amended prospectus.
(i) The Company and Newcourt will cause to be made generally
available to its security holders as soon as practicable an
earnings statement which shall meet the requirements of
Section 11(a) of the Act and Rule 158 promulgated thereunder.
(j) Until the business day following the Closing Date, the Company
will not, without the consent of the Representative offer,
sell or contract to sell, or
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announce the offering of, any debt securities covered by the
Registration Statement or any other registration statement
filed under the Act.
8. Conditions of the Obligations of the Underwriters. The obligations
of the Underwriters to purchase and pay for the Notes shall be subject to the
following additional conditions:
(a) At the time of closing, the Indenture [and the Guarantee]
shall be qualified under the Trust Indenture Act, the
Prospectus shall have been filed or delivered for filing to
the Commission not later than 5:00 p.m. on the second business
day following the date hereof, no stop order suspending the
effectiveness of the Registration Statement, as amended from
time to time, shall be in effect and no proceedings for that
purpose shall be pending before or threatened by the
Commission, and the Representative shall have received a
certificate dated the day of the closing and signed by the
President, a Vice President or the Treasurer of each of the
Company and Newcourt to the effect that no such stop order is
in effect and, to the knowledge of the Company and Newcourt,
no proceedings for such purpose are pending before, or
threatened by, the Commission.
(b) At or prior to the time of closing, the Representative shall
have received from counsel for the Company, an opinion,
satisfactory to Winston & Xxxxxx, to the effect that --
(i) The Company has been duly incorporated and is validly
existing and in good standing under the laws of the
State of Delaware and Newcourt has been duly
incorporated and is validly existing and in good
standing under the laws of the Province of Ontario,
Canada; each of the Company and Newcourt 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
upon it and its subsidiaries taken as a whole), 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 Prospectus;
(ii) The issue and sale of the Notes by the Company and
the compliance by the Company with all the provisions
of this Agreement, and the Indenture, and the
consummation of the transactions contemplated hereby
and thereby will not conflict with or result in a
breach or violation of any of the terms or provisions
of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other
10
agreement or instrument known to such counsel to
which the Company or any of its subsidiaries is a
party or by which the Company or any of its
subsidiaries is bound or to which any of the property
or assets of the Company 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 the Company 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 the Company 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
on the Company and its subsidiaries taken as a
whole); and, except for the registration of the Notes
under the Act and such consents, approvals,
authorizations, registrations or qualifications as
may be required under the Exchange Act and applicable
state securities laws in connection with the purchase
and distribution of the Notes by the Underwriters, 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 the Company of,
compliance by the Company with the provisions of, or
the consummation of the transactions contemplated by
this Agreement and any Delayed Delivery Contract,
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 be material to the Company and
its subsidiaries taken as a whole;
(iii) The issue of the Guarantee by Newcourt and the
compliance by Newcourt with all the provisions of
this Agreement, the Guarantee, and the Indenture, and
the consummation of the transactions contemplated
hereby and thereby will not conflict with or result
in a breach or violation of any of the terms or
provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument known to such counsel
to which Newcourt or any of its subsidiaries is a
party or by which Newcourt or any of its subsidiaries
is bound or to which any of the property or assets of
Newcourt or any of its subsidiaries is subject, nor
will such actions result in any violation of the
provisions of the charter or by-laws of Newcourt or
any of its subsidiaries or any statute or any order,
rule or regulation known to such counsel of any court
or governmental agency or body having jurisdiction
over Newcourt or any of its subsidiaries or any of
their properties or assets (except for such
conflicts, breaches, violations and defaults as would
not have a material adverse effect on Newcourt and
its subsidiaries
11
taken as a whole); and, except for the registration
of the Notes and the Guarantee under the Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange
Act and applicable state securities laws in
connection with the purchase and distribution of the
Notes by the Underwriters, 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 be material to the Newcourt
and its subsidiaries taken as a whole;
(iv) The Indenture has been duly authorized, executed and
delivered by the Company, Newcourt and the Trustee
and duly qualified under the Trust Indenture Act and
is a valid and binding agreement of the Company and
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 have been duly authorized by the Company
and, when duly executed and authenticated as provided
in the Indenture and delivered against payment
therefor in accordance with this Agreement and each
Delayed Delivery Contract, will be duly and validly
issued and outstanding, and will constitute valid and
binding agreements of the Company 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 Newcourt and 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 similar laws relating to or
affecting creditors' rights generally and subject to
general equitable principles);
(vii) The Registration Statement has become effective under
the Act and, to the knowledge of such counsel, no
stop order suspending the
12
effectiveness of the Registration Statement has been
issued and no proceeding for that purpose is pending
or threatened by the Commission;
(viii) The statements made in the Prospectus under the
captions "Description of the Debt Securities" and
"Plan of Distribution", insofar as such statements
constitute summaries of the legal matters, documents
or proceedings specifically referred to therein,
fairly present the information called for with
respect to such legal matters, documents and
proceedings and fairly summarize the matters referred
to therein;
(ix) This Agreement has been duly authorized, executed and
delivered on behalf of the Company and Newcourt and
is valid and binding on the Company and Newcourt,
except as rights to indemnity and contribution
hereunder may be limited under applicable law;
(x) The opinions of counsel, if, any, expressed or
referred to under the caption "Material Federal
Income Tax Consequences" in the Prospectus are
confirmed as correct in all material respects;
(xi) Except as to financial statements and schedules
contained therein, as to which such opinion is not
called upon to express any opinion or belief, (A)
each document or portion thereof incorporated by
reference in the Registration Statement and the
Prospectus complied when filed with the Commission as
to form in all material respects with the
requirements of the Exchange Act, together with the
applicable instructions, rules and regulations of the
Commission thereunder, (B) each part of the
Registration Statement when it became effective
complied as to form in all material respects with the
requirements of the Act and the applicable
instructions, rules and regulations of the Commission
thereunder, (C) the Registration Statement and the
Prospectus, as amended or supplemented, if
applicable, comply, and at the date hereof complied,
as to form in all material respects with the
requirements of the Act and the applicable
instructions, rules and regulations of the Commission
thereunder, (D) the Registration Statement, as of its
effective 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 not misleading, and (E) the
Prospectus does 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
13
therein, in the 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 & Xxxxxx an opinion to the effect
specified in clauses (iv), (v), (vii), (viii), (ix) (solely
with respect to the Company), (x), and (xi) (B), (C) and (E),
specifically.
(d) 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 each of Coopers & Xxxxxxx L.L.P., Xxxxxx
Xxxxxxxx LLP and Ernst & Young, addressed to the Company or
Newcourt, as applicable, and to the Representative, to the
effect that (i) they are independent public accountants as
required by the Act and the applicable published rules and
regulations of the Commission thereunder; (ii) the audited
financial statements contained or incorporated by reference in
the Registration Statement, as amended or supplemented from
time to time, comply as to form in all material respects with
the applicable accounting requirements of the Exchange Act and
the applicable published rules and regulations of the
Commission thereunder; and (iii) nothing has come to their
attention as the result of specified procedure not
constituting an audit that caused them to believe (A) that the
unaudited financial statements, if any, contained in or
incorporated by reference as aforesaid, do not so comply and
are not fairly presented in conformity with generally accepted
accounting principles applied on a basis substantially
consistent with that of the audited financial statements
contained as aforesaid, (B) that there was any change in the
capital stock or long or intermediate term debt of the
Company, or any decrease in net assets, from the date of the
latest balance sheet which is contained in or incorporated by
reference as aforesaid, to a date not more than five days
prior to the date of such letter or (C) that there were any
decreases, as compared with the corresponding period in the
preceding year, in total revenues, income before interest
deductions or net income from the date of the latest figures
for such items contained in the Registration Statement to the
date of the latest available financial statements of the
Company; provided that, with respect to any of the items
specified in clause (iii), such letter may contain an
exception for matters which the Registration Statement
discloses have occurred or may occur; and provided, further,
that the letter may vary from the requirements specified in
this subparagraph in such manner as the Representative in its
sole discretion may determine to be immaterial or in such
manner as may be acceptable to the Representative.
(e) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there shall not
have been, at the time of
14
closing, any material adverse change in or affecting the
general affairs, management, financial position, stockholders'
equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in
the Registration Statement and the Prospectus; the
representations and warranties of the Company herein shall be
true at the time of closing; the Company shall not have
failed, at or prior to the time of closing, 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 time of closing, a
certificate to the foregoing effect dated the day of the
closing and signed by the President, a Vice President or the
Treasurer of the Company.
(f) Subsequent to the execution and delivery of this Agreement (i)
no downgrading shall have occurred in the rating accorded the
Company'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 the Company's
debt securities.
(g) Prior to the Closing Date, the Company shall have furnished to
the Representative such further information, certificates and
documents as the Representative may reasonably request.
In case any of the conditions specified above in this Section 8 shall
not have been fulfilled, this Agreement may be terminated by the Representative
by delivering written notice of termination to the Company. Any such termination
shall be without liability of any party to any other party except to the extent
provided in subparagraphs (d) and (g) of Section 7 hereof.
9. Conditions of Company's Obligation. The obligation of the Company to
deliver the Notes upon payment therefor shall be subject to the following
conditions:
At the time of closing, the Indenture [and the Guarantee] shall be
qualified under the Trust Indenture Act, the Prospectus shall have been filed or
delivered for filing to the Commission not later than 5:00 p.m. on the second
business day following the date hereof and no stop order suspending the
effectiveness of the Registration Statement, as amended from time to time, shall
be in effect and no proceedings for that purpose shall then be pending before,
or threatened by, the Commission.
In case any of the conditions specified above in this Section shall not
have been fulfilled, this Agreement may be terminated by the Company by
delivering written notice of termination to the Representative. Any such
termination shall be without liability of any party to any other party except to
the extent provided in subparagraphs (d) and (g) of Section 7 hereof.
15
10. 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 Underwriters 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 Companies on any exchange or in the over-the-counter market,
shall have been suspended or minimum prices shall have been established on any
such exchange or such market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction, (ii) a banking
moratorium shall have been declared by Federal or New York State authorities, or
(iii) the United States shall have become engaged in hostilities, there shall
have been an escalation in hostilities involving the United States or there
shall have been a declaration of a national emergency or war by the United
States 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 Prospectus.
A termination of this Agreement pursuant to this Section shall be
without liability of any party to any other party.
11. Indemnification And Contribution. (a) The Company and Newcourt
shall, jointly and severally, indemnify and hold each Underwriter harmless from
and against any and all losses, claims, damages, and liabilities, joint or
several, to which such Underwriter may become subject, under the 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 Registration Statement or
the Prospectus, 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 Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigated or
defending any such action or claim as such expenses are incurred; provided,
however, that the Company and Newcourt 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 an untrue statement or alleged untrue statement or omission or
alleged omission made in the Provided Information in the Registration Statement
or the Prospectus or any such amendment or supplement.
(b) Each Underwriter will indemnify and hold harmless the Company and
Newcourt against any losses, claims, damages or liabilities to which the Company
or Newcourt may become subject, under the 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 Registration Statement or the Prospectus, 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 Registration Statement or Prospectus or any such amendment or
supplement; and will reimburse the
16
Company and Newcourt for any legal or other expenses reasonably incurred by the
Company and Newcourt in connection with investigating or defending any such
action or claim as such expenses are incurred.
(c) The Company, Newcourt and each Underwriter agree that upon the
commencement of any action against it, its directors, its officers who sign the
Registration Statement, 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 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, Newcourt and one or more Underwriters 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 Underwriters or
controlling persons are indemnified parties and by the Company or Newcourt in
the case of an action in which the Company or Newcourt 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 11 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,
17
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 Newcourt on the one hand and the Underwriters 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 Newcourt on one
hand the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company and Newcourt on
one hand and the Underwriters 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 underwriting discounts and commissions received by the Underwriters
with respect to the Notes purchased under this Agreement, in each case as set
forth the in table on the cover page of the Prospectus. The relative fault of
the Company and Newcourt and of the Underwriters 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 Newcourt on one hand or by the
Underwriters on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, Newcourt and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this subparagraph (d) were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) 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
11, 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 Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Notes underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which Underwriter 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 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subparagraph (d) to contribute are several in proportion to
their respective underwriting obligations as set forth in Schedule I hereto
(including an increase pursuant to Section 6) and not joint.
(e) The obligations of the Company and Newcourt under this Section 11
shall be in addition to any liability which the Company and Newcourt may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act; and
the obligations of the underwriters under this Section 11 shall be in addition
to any liability which the respective Underwriters may otherwise have and shall
extend, upon the
18
same terms and conditions, to each officer and director of the Company or
Newcourt and to each person, if any, who controls the Company or Newcourt within
the meaning of the Act.
12. Miscellaneous. This Agreement shall inure to the benefit of the
Company and Newcourt, their respective directors and officers who sign the
registration statement, the several Underwriters and each controlling person
referred to in Section 11 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 Underwriters.
13. Notices. All communications hereunder shall be in writing, and if
to the Underwriters, unless otherwise provided, shall be mailed or delivered to
the Representative at [ ] and if to the Company, unless
otherwise provided, shall be mailed or delivered to the Company at 00 Xxxxxxxx
Xxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000-0000.
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 Underwriter who is in
default within the meaning of Section 5 hereof, the indemnity and contribution
agreement contained in Section 11 hereof and the representations and warranties
of the Company and Newcourt 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 Underwriter or any person controlling any Underwriter, or
(iii) acceptance of and payment for the Notes.
19
Please sign and return to us the enclosed duplicate of this letter,
whereupon this letter will become a binding agreement between the Company,
Newcourt and the several Underwriters, in accordance with its terms.
Very truly yours,
AT&T CAPITAL CORPORATION
By:
-------------------------------
Printed Name:
----------------
Title:
------------------------
By:
-------------------------------
Printed Name:
----------------
Title:
------------------------
NEWCOURT CREDIT GROUP INC.
By:
-------------------------------
Printed Name:
----------------
Title:
-----------------------
By:
-------------------------------
Printed Name:
----------------
Title:
-----------------------
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written
(Representative of the Several Underwriters)
By:
-------------------------------
Printed Name:
---------------
Title:
----------------------
By:
-------------------------------
Printed Name:
---------------
Title:
----------------------
Acting severally on behalf of itself
and the several Underwriters named herein
20
SCHEDULE I
NAME PRINCIPAL AMOUNT
22
