Exhibit 10
AT&T Capital Corporation
GUARANTEE DATED FEBRUARY 20, 1998 MADE BY AT&T CAPITAL CORPORATION
Guarantee dated as of February 20, 1998, made by AT&T Capital
Corporation (the "Guarantor"), a corporation incorporated under the laws of
Delaware, to and in favor of (i) the Lenders (as defined in that certain Amended
and Restated Credit Agreement dated as of May 14, 1997, as the same may be
amended, supplemented , restated or replaced in writing from time to time, the
"Cdn Agreement") who are party to the Cdn Agreement; (ii) the holders of
Securities (as defined in that certain Trust Indenture dated as of June 1,1995,
as the same may be amended supplemented, restated or replaced in writing from
time to time, the "Indenture") issued pursuant to the Indenture (the "MTN
Noteholders"); (iii) the Banks (as defined in that certain Reaffirmation of
Guarantee dated as of May 14, 1997, as beneficiaries under the Guarantee (as
defined in the Reaffirmation) (the "Banks"); (iv) the holders of the Series A
Notes (as defined in that certain Note Agreement dated as of February 1, 1995,
as the same may be amended, supplemented, restated or replaced in writing from
time to time, the "First Note Agreement") (the "Series A Noteholders") issued
pursuant to the First Note Agreement; (v) the Noteholders (as defined in a
Guaranty Agreement dated as of February 1,1995 made by Newcourt Credit Group
Inc. (the "Company"), the "First Guaranty") as beneficiaries under the First
Guaranty (the "First Noteholders"); (vi) the holders of the Series F Notes and
Series G Notes (as defined in that certain Note Agreement dated as of September
1, 1995, as the same may be amended, supplemented, restated or replaced in
writing from time to time, the "Second Note Agreement") (the "Series F
Noteholders", and the "Series G Noteholders", respectively) issued pursuant to
the Second Note Agreement; (vii) the Noteholders (as defined in the Guaranty
Agreement dated as of September 1, 1995 made by the Company, the "Second
Guaranty") as beneficiaries under the Second Guaranty (the "Second
Noteholders"); and (viii) the Noteholders (as defined in a Guarantee dated as of
September 15, 1997, made by the Company, the "USCP Guaranty") as beneficiaries
under the USCP Guaranty (the "US CP Noteholders") (the Lenders, the MTN
Noteholders, the Banks, the Series A Noteholders, the First Noteholders, the
Series F Noteholders, the Series G Noteholders, the Second Noteholders and the
US CP Noteholders are collectively referred to as the "Noteholders") (the Cdn
Agreement, the Indenture, the Guarantee, the Series A Notes, the First Guaranty,
the Series F Notes, the Series G Notes, the Second Guaranty and the USCP
Guaranty are collectively referred to as the "Debt Securities").
WHEREAS the Guarantor is an indirect wholly-owned subsidiary of
the Company;
AND WHEREAS the Guarantor has agreed to execute and deliver this
Guarantee as security for the payment and performance of the obligations,
present or future, direct or indirect, absolute or contingent, matured or
unmatured, of the Company to the Noteholders arising under, pursuant to, or in
connection with the Debt Securities;
NOW THEREFORE, in consideration of the foregoing premises, and
other good and valuable consideration given by the Noteholders to the Guarantor,
the receipt and sufficiency of which are hereby acknowledged, the Guarantor
hereby agrees as follows:
SECTION 1. GUARANTEE. The Guarantor hereby, irrevocably and
unconditionally guarantees (as a guarantor and not as a primary obligor) as and
when the same become due and payable, the due and punctual payment to the
Noteholders, whether at stated maturity or otherwise, of all debts, liabilities
and obligations of the Company under the Debt Securities, present or future,
direct or indirect, absolute or contingent, matured or not, at any time owing by
the Company to the Noteholders, or any of them, however or wherever incurred,
and in any currency, and whether incurred by the Company alone or with another
or others and whether as principal or surety, arising under, pursuant to, or in
connection with the Debt Securities and all transactions contemplated thereby,
together with all interest (including, without limitation, interest accruing
after the commencement of bankruptcy, insolvency or similar proceedings with
respect to the Company, whether or not such interest constitutes an allowed
claim in such proceedings) and fees from time to time accruing thereon and all
reasonable and necessary expenses incurred by or on behalf of the Noteholders in
respect of the interpretation or enforcement of documentation with respect
thereto or hereto or otherwise (such obligations being herein called the
"Guaranteed Obligations"), and any and all reasonable and necessary
out-of-pocket expenses (including counsel fees and disbursements), fees and the
amount of prior claims incurred or paid by or on behalf of the Noteholders in
enforcing any of its rights under this Guarantee.
SECTION 2. UNLIMITED LIABILITY. The liability of the Guarantor
under this Guarantee shall be unlimited both with respect to the principal
amount of the Guaranteed Obligations and with respect to interest, fees,
charges, prior claims or costs of collections and reasonable and necessary
expenses incurred or paid by or on behalf of the Noteholders in enforcing any
rights hereunder.
SECTION 3. ABSOLUTE LIABILITY. The Guarantor hereby guarantees
that the Guaranteed Obligations will be paid to the Noteholders 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 lack of validity or enforceability of the Debt
Securities or other agreement or instrument with respect
to the indebtedness of the Company to the Noteholders
entered into between the Company and the Noteholders (such
Debt Securities and other agreements and instruments being
hereinafter collectively referred to as the "Noteholder
Agreements") or any terms thereof;
(b) any contest by the Company or any other person as to the
amount of the Guaranteed Obligations or the validity or
enforceability of any terms of the Debt Securities or the
Noteholder Agreement;
(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
Noteholders may grant to the Company or any amendment to
or alteration of the Debt Securities or the Noteholder
Agreements or the Guaranteed Obligations;
(e) the permitted assignment of all or any part of the
benefits of this Guarantee; and
(f) 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 this Guarantee.
SECTION 4. REMEDIES. This is 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 the Noteholders shall not be bound to exhaust
their recourse against the Company or any other person or to realize on any
security they may hold in respect of the Guaranteed Obligations before being
entitled to payment. The Guarantor hereby waives the right to require the
Noteholders 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 Noteholders from
pursuing concurrently or successively all rights and remedies available to them
at law and/or in equity and the exercise of any of their rights or the
completion of any of their remedies shall not constitute a discharge of any of
Guarantor's obligations hereunder.
SECTION 5. AMOUNT OF GUARANTEED OBLIGATIONS. Any account settled
or stated by or between the Noteholders and the Company, or if any such account
has not been so settled or stated immediately before demand for payment under
this Guarantee, any accounts stated by the Noteholders shall, in the absence of
manifest error, be accepted by the Guarantor as conclusive evidence of the
amount of the Guaranteed Obligations which at the date of the account so settled
or stated is due by the Company to the Noteholders or remains unpaid by the
Company to the Noteholders.
SECTION 6. PAYMENT ON DEMAND. The Guarantor shall make payment of
the amount of the Guaranteed Obligations and all other amounts payable by it to
the Noteholders hereunder forthwith after demand therefor is made in writing to
it and such demand shall be deemed to have been effectively made when an
envelope containing such demand addressed to it c/o Newcourt Credit Group Inc.,
BCE Place, 181 Bay Street, P.O. Box 827, Toronto, Ontario, M51 2T3 for the
attention of the President (or at such other address as may be notified by the
Guarantor to the Noteholders) and to AT&T Capital Corporation, 44 Whippany Road,
Morristown, NJ 07962-1983, attention, General Counsel, is personally delivered
to such addresses, and the liability of the Guarantor shall bear interest from
the date of such receipt of such demand at the rate or rates of interest then
applicable to the Guaranteed Obligations.
SECTION 7. SUBROGATION. Upon receipt by the Noteholders 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
Noteholders' claims 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 Noteholders
shall have the right to rank in priority to the Guarantor for their full claims
in respect of the Guaranteed Obligations and receive all dividends,
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 Noteholders by the Company.
If any amount shall be paid to the Guarantor on account of any subrogation
rights at any time when all the Guaranteed Obligations shall not have been paid
in full, such amount shall be held in trust for the benefit of the Noteholders
and shall forthwith be paid to the Noteholders to be credited and applied by the
Noteholders upon the Guaranteed Obligations, whether matured or unmatured.
SECTION 8. SUSPENSION OF GUARANTOR'S 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
debt, 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
Noteholders under the Noteholder Agreements or any other
guarantee or security taken pursuant to or in connection
therewith.
SECTION 9. WAIVERS. The Guarantor hereby waives, to the extent
permitted by applicable law, (i) notice of acceptance of this Guarantee by the
Noteholders 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 Noteholders, (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 herein, (iv) any failure by the
Noteholders to inform Guarantor of any facts the Noteholders may now or
hereafter know about the Company or the transaction contemplated by the
Noteholder Agreements, it being understood and agreed that the Noteholders 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. The Guarantor acknowledges that no representations of any kind
whatsoever have been made by the Noteholders to the Guarantor. No modification
or waiver of any of the provisions of this Guarantee shall be binding upon the
Noteholders except as expressly set forth in a writing duly signed and delivered
on behalf of the Noteholders.
SECTION 10. NO PREJUDICE TO THE NOTEHOLDERS. The Noteholders
shall not be prejudiced in any way in the right to enforce any provision of this
Guarantee by any act or failure to act on the part of the Company or
the Noteholders. The Noteholders may, at any time and from time to time, without
any consent of or notice to the Guarantor and without impairing or releasing the
obligations of the Guarantor hereunder, (i) change the manner, place or terms of
payment or change or extend time of payment of, or renew or alter, or otherwise
amend or modify, the Guaranteed Obligations; (ii) release anyone liable in any
manner under or in respect of, or grant any waivers with respect to, the
Guaranteed Obligations; (iii) exercise or refrain from exercising any rights
against the Company or the Guarantor; and (iv) apply any sums from time to time
received to the Guaranteed Obligations.
SECTION 11. CONTINUING GUARANTEE. The Guarantee shall be a
continuing guarantee and shall extend to all present and future Guaranteed
Obligations and shall apply to and secure any ultimate balance thereof due or
remaining due to the Noteholders and shall be binding as a continuing obligation
of the Guarantor until the earlier of (i) the Noteholders releasing the
Guarantor from any further obligation hereunder; and (ii) the date on which the
Guaranteed Obligations have been repaid in full to the Noteholders. 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 Noteholders upon the insolvency, bankruptcy or
reorganization of the Company or otherwise, regardless of whether the
Noteholders contested the order requiring the return of such payment, all as
though such payment had not been made. The obligations of the Guarantor pursuant
to the preceding sentence shall survive any termination, cancellation or release
of this Guarantee for a period of six (6) years.
SECTION 12. INTEREST ACT (CANADA). The Guarantor acknowledges
that, 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 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 (iii) the rates of interest stipulated in respect of the
Guaranteed Obligations are intended to be nominal rates and not effective rates
or yields.
SECTION 13. SUPPLEMENTAL GUARANTEE. This Guarantee is in addition
and without prejudice to and supplemental to all other guarantees held, or which
may hereafter be held, by the Noteholders, or any of them.
SECTION 14. 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 or from time to time carrying on the business
of the Company.
SECTION 15. RIGHT OF SET-OFF. To the fullest extent permitted by
law, the Guarantor shall make all payments hereunder without regards to any
defense, counterclaim or right of set-off available to it.
SECTION 16. 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
Noteholders hereunder have been paid or repaid in full to the Noteholders and
shall be no greater than the right held by the Noteholders, and the Guarantor
shall have no recourse against the Noteholders for any irregularity or defect in
the manner or procedure by which the Noteholders make demand or pursue any
rights or remedies they may have.
SECTION 17. 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 document 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, Government 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 and no authorization,
consent, approval, license or exemption under any applicable
law, rule or regulation having the force of law, and no
registration, qualification, decision, 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 Noteholders, except such as are in
full 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.
SECTION 18. NO REPRESENTATIONS, ETC. There are no
representations, collateral agreements or conditions with respect to this
instrument or affecting the Guarantor's liability hereunder other than as
contemplated or referred to herein.
SECTION 19. GOVERNING LAW.
(a) This Guarantee shall be governed by and construed in
accordance with the laws of the State of Delaware and shall
be treated in all respects as a contract under the laws of
such jurisdiction.
(b) Subject to Section 19(d), 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 any 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.
(c) 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.
(d) 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 a suit,
action or proceeding for reconsideration or review of, any
such order or judgment.
SECTION 20. 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 21. 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 22. SUCCESSORS AND ASSIGNS. This Guarantee shall extend
to and inure to the benefit of the Noteholders and their respective successors
and assigns and shall be binding upon the Guarantor and its successors and
assigns.
SECTION 23. JUDGMENT CURRENCY.
(1) If for the purposes of obtaining judgment in any court it is
necessary to convert all or any part of the Guaranteed Obligations or any other
amount due to the Noteholders hereunder or under any security in respect of the
Guarantor's obligations in any currency (the "Original Currency") into another
currency (the "Other Currency") the Guarantor, to the fullest extent that it may
effectively do so, agrees that the rate of exchange used shall be that at which,
in accordance with normal banking procedures, the applicable Noteholder could
purchase the Original Currency with the Other Currency in Toronto, Ontario on
the day (a "Business Day") on which the applicable Noteholder is open for the
transaction of business immediately preceding the day on which any such judgment
or any relevant part thereof, is paid or otherwise satisfied.
(2) The obligation of the Guarantor in respect of any sum due in the
Original Currency from it to the Noteholders hereunder or under any security in
respect of the Guarantor's obligation hereunder shall, notwithstanding any
judgment in any Other Currency, be discharged only to the extent that on the
Business Day following receipt by the applicable Noteholder of any sum adjudged
to be so due in such Other Currency or of any other sum in any Other Currency
such Noteholder may, in accordance with Its normal procedures, purchase the
Original Currency with such Other Currency. If the amount of the Original
Currency so purchased is less than the sum originally due to the applicable
Noteholder in the Original Currency, the Guarantor shall, as a separate
obligation and notwithstanding any such judgment, indemnify such Noteholder
against such loss, and if the amount of the Original Currency so purchased
exceeds the sum originally due to such Noteholder, such Noteholder shall remit
such excess to the Guarantor.
SECTION 24. TAXES.
(1) 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 jurisdiction in which Guarantor is
incorporated or of 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 in immediately available Dollars of Canada or the United States based on
the currency of the principal obligation 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, duties, charges, fees, deductions, withholdings or restrictions or
conditions of any nature whatsoever 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 required deductions or withholdings
(including deduction or withholding applicable to additional amounts paid under
this section), the applicable Noteholders 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. The Guarantor will not be required
to pay
any such additional amounts (iv) to any Noteholder by reason of that Noteholder
being connected with Canada otherwise than merely by lending money to the
Company pursuant to the Debt Securities, including without limitation, a
non-resident insurer who carries on an insurance business in Canada and in a
country other than Canada; or (v) to any Noteholder in respect of whom such
Taxes are required to be withheld or deducted as a result of its not dealing at
Arm's Length with either the Guarantor or the Company.
(2) 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.
(3) The Guarantor shall indemnify the Noteholders 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
Noteholders 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 applicable Noteholder makes
written demand therefor. A certificate as to the amount of such Taxes or Other
Taxes submitted to the Guarantor by the applicable Noteholder 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 applicable Noteholder.
(4) The Guarantor will furnish to the applicable Noteholder the
original or certified copy of a receipt evidencing any payment of Taxes or other
Taxes made by the Guarantor as soon as such receipt becomes available.
IN WITNESS WHEREOF the Guarantor has duly executed this Guarantee and
affixed its corporate seal under the hand of its proper officer(s) duly
authorized in that behalf as of the day and year first above written.
AT&T Capital Corporation
By: /s/ Glenn A. Votek
-------------------------
Glenn A. Votek
Its: Treasurer
By: /s/ Glen J. DuMont
-------------------------
Glen J. DuMont
Its: Assistant Secretary
Dated: February 20, 1998