AT&T CAPITAL CORPORATION
SUPPORT AGREEMENT
SUPPORT AGREEMENT ("Agreement"), dated as of the 9th day of
February, 1998, between NEWCOURT CREDIT GROUP INC., an Ontario corporation
("Newcourt"), and AT&T CAPITAL CORPORATION, a Delaware corporation ("Capital").
W I T N E S S E T H:
WHEREAS, Newcourt directly or indirectly owns at least a
majority of the outstanding voting common stock of Capital;
WHEREAS, Capital plans from time to time to incur, assume or
guarantee Debt (as defined below) and has heretofore incurred, assumed or
guaranteed Debt, including Debt that is currently outstanding; and
WHEREAS, Newcourt and Capital desire to provide certain
agreements as to the stock ownership and net worth of Capital and the
availability of funds to Capital in conjunction with the incurrence, assumption
or guarantee of Debt by Capital and the ownership or continued ownership of
currently outstanding Debt of Capital by the holders thereof;
WHEREAS, in conjunction with the execution and delivery of
this Agreement, certain outstanding indebtedness for borrowed money of Newcourt
is being guaranteed by Capital;
NOW, THEREFORE, for good and adequate consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Definitions. For the purposes of this Agreement,
the following terms shall have the definitions assigned to them below:
(a) "Debt" shall mean (i) any indebtedness for borrowed money
incurred by Capital from any Person and (ii) indebtedness for borrowed money of
any Person to another Person assumed or guaranteed by Capital; provided that
neither of the following shall constitute Debt for purposes of this Agreement:
(x) any indebtedness for borrowed money incurred, assumed or guaranteed from
time to time by Capital which indebtedness (or, in the case of a guaranty
thereof, such guaranty), by the terms of the instruments evidencing such
indebtedness (or guaranty) or any indenture or similar instrument relating
thereto, is not entitled to the benefit of this Agreement; and (y) any
indebtedness for borrowed money (howsoever arising, including without limitation
by way of securitization or syndication transactions) incurred, assumed or
guaranteed from time to time by Capital which indebtedness (or, in the case of a
guaranty thereof, such guaranty) is secured by a pledge, mortgage, security
interest or lien on, or payable solely from the income and proceeds of, any
property (including, without limiting the generality of such term, any shares of
stock, other equity
interests, debt, intangible assets or tangible assets) of Capital or any direct
or indirect subsidiary thereof and which indebtedness (or guaranty) is not a
general obligation of Capital.
(b) "Person" shall mean any individual, corporation,
partnership, trust, association or other entity of any kind.
2. Stock Ownership. At all times while this Agreement is in
effect, Newcourt (i) will directly or indirectly own and hold the legal title to
and beneficial interest in a majority of the outstanding shares of capital stock
of Capital having voting power for the election of members of the Board of
Directors of Capital (other than shares having such power only by reason of the
occurrence of a contingency) and (ii) will not directly or indirectly sell,
exchange, transfer, pledge or in any way encumber or otherwise dispose of any
such majority shares of capital stock except, in the case of either clause (i)
or (ii), to the extent required to dispose of any such majority shares of
capital stock pursuant to a court decree or order of any governmental authority
which, in the opinion of the general counsel of or outside counsel to Newcourt,
more likely than not may not be successfully challenged.
3. Maintenance of Tangible Net Worth. At all times while this
Agreement is in effect, Newcourt will cause Capital and its subsidiaries to have
a consolidated tangible net worth (as determined in accordance with generally
accepted accounting principles consistently applied as in effect from time to
time and reflected in the consolidated balance sheet of Capital) of at least
$1.00.
4. Maintenance of Liquidity. At all times while this Agreement
is in effect, if Capital is unable to make timely payment of any principal,
interest or premium in respect of any Debt, Newcourt shall, at Capital's
request, provide (or cause to be provided) to Capital on a timely basis, funds
(which, if provided by Newcourt or any subsidiary of Newcourt, may be provided
as an equity contribution, as a loan or otherwise, in each case, as elected by
Newcourt) sufficient to make such payment.
5. Waiver. Newcourt hereby waives any failure or delay on the
part of Capital in asserting or enforcing any of its rights or in making any
claims or demands hereunder; provided that, in any case, Newcourt shall have no
obligation under paragraph 4 hereof unless and until the request referred to
therein is made.
6. Amendment and Termination. This Agreement may be amended or
terminated by the parties hereto at any time in writing; provided that, so long
as any series of Debt (or, if not issued as a series, any other Debt) incurred,
assumed or guaranteed by Capital prior to such amendment or termination remains
outstanding, no such amendment which adversely affects the holders of such
series of Debt (or, if not issued as a series, such other Debt) or any such
termination shall become effective with respect to such series of Debt (or such
other Debt) unless (i) at least two nationally recognized statistical rating
agencies that have rated such series of Debt (or such other Debt) prior to such
amendment or termination confirm in writing that their ratings for such series
of Debt (or such other Debt) in effect immediately prior to such amendment or
termination will not be downgraded as a result of such amendment or termination
(or, in the case of any such series of Debt
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(or such other Debt) that is not so rated, such series of Debt (or such other
Debt) shall be treated in the same manner as any series of similar Debt (or
other similar Debt) that is so rated); or (ii) such series of Debt (or such
other Debt) shall have been defeased in accordance with the provisions of the
instrument evidencing such series of Debt (or such other Debt) or any indenture
or similar instrument relating thereto; or (iii) the holders of at least a
majority of the outstanding principal amount of such series of Debt consent (or,
with respect to any Debt not issued as a series, the holder of such Debt
consents) in writing to such amendment or termination.
7. Rights of Holders of Debt. All holders of Debt incurred,
assumed or guaranteed by Capital during the term of this Agreement or incurred,
assumed or guaranteed by Capital prior to the date hereof shall be intended
third-party beneficiaries of this Agreement; provided that the third-party
beneficiary rights of any such holder shall be limited to (i) the right to
demand that Capital enforce Capital's rights under paragraphs 2, 3 and 4 of this
Agreement and (ii) the right to proceed against Newcourt on behalf of Capital to
enforce Capital's rights under paragraphs 2, 3 and 4 of this Agreement for the
benefit of Capital if Capital fails or refuses to take timely action to enforce
Capital's rights hereunder following demand for such enforcement by such holder.
8. Not a Guaranty. Notwithstanding any other provision of this
Agreement, this Agreement, its provisions and any actions taken pursuant hereto
by Newcourt shall not constitute or be deemed to constitute a direct or indirect
guaranty by Newcourt of any Debt or other obligation or liability of any kind or
character whatsoever of Capital, and no holder of any such Debt, obligation or
liability shall have any right to proceed directly against Newcourt to obtain
any amount due with respect to any such Debt, obligation or liability including,
without limitation, any principal thereof or interest or premium thereon.
9. Successors or Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.
10. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York
(excluding its rules regarding conflicts of laws other than as set forth in
Section 5-1401 of the New York General Obligations Law).
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IN WITNESS WHEREOF, Newcourt and Capital have executed and
delivered this Agreement as of the day and year first above written.
NEWCOURT CREDIT GROUP INC.
ATTEST:
By Daniel A. Jauernig
__________________________________
Charles L. Halam-Andres By Geoffrey A. Ichii
_______________________ __________________________________
AT&T CAPITAL CORPORATION
ATTEST:
By Glenn A. Votek
__________________________________
Glen J. DuMont By Elizabeth A. Kettenstock
________________________ __________________________________
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