EXHIBIT 10(b)
Form 10-Q for the Quarter
Ended March 31, 1998
File No. 1-11237
GUARANTEE
Guarantee dated as of April 1, 1998, made by Newcourt Credit
Group Inc. (the "Guarantor"), a corporation incorporated under the laws of the
Province of Ontario, to and in favor of _________________________ for the
benefit of the holders of the Securities (as defined herein) (collectively, the
"Holders").
WHEREAS the Guarantor is the owner of all the issued and
outstanding capital stock of AT&T Capital Corporation (the "Company");
AND WHEREAS the Company will issue from time to time (i) warrants
to purchase the Debt Securities ("Debt Warrants") pursuant to a Debt Warrant
Agreement substantially in the form attached hereto as Exhibit A (the "Debt
Warrant Agreement"); (ii) warrants entitling the holder thereof to receive from
the Company, upon exercise, an amount in cash equal to the cash value of the
right to purchase or to sell a certain amount of one currency for a certain
amount of a different currency ("Currency Warrants") pursuant to a Currency
Warrant Agreement substantially in the form attached hereto as Exhibit B (the
"Currency Warrant Agreement"); (iii) warrants entitling the holders thereof to
receive from the Company, upon exercise, an amount in cash determined by
reference to decreases or increases in the level of a specified index or
determined by reference between two specified indices ("Index Warrants")
pursuant to an Index Warrant Agreement substantially in the form attached hereto
as Exhibit C (the "Index Warrant Agreement"); and (iv) warrants entitling the
holders thereof to receive from the Company, upon exercise, an amount in cash
determined by reference to decreases or increases in the yield or closing price
of one or more specified debt instruments issued by either the United States
government or by a foreign government, in the interest rate or interest swap
rate established from time to time by one or more specified financial
institutions or in any specified combination thereof ("Interest Rate Warrants"
and together with the Debt Warrants, Currency Warrants and the Index Warrants,
the "Securities") pursuant to an Interest Rate Warrant Agreement substantially
in the form attached hereto as Exhibit D (the "Interest Rate Warrant Agreement"
and together with the Debt Warrant Agreement, Currency Warrant Agreement and
Index Warrant Agreement, the "Warrant Agreements").
NOW THEREFORE, in consideration of the foregoing premises, and
other good and valuable consideration given by the Holders and the Company to
the Guarantor, the receipt and sufficiency of which are hereby acknowledged, the
Guarantor hereby agrees as follows:
SECTION 1. GUARANTEE. The Guarantor hereby, irrevocably and
unconditionally guarantees (as a guarantor and not as a surety) (a) to the
holders of Currency Warrants, Index Warrants and Interest Rate Warrants the due
and punctual payment of all obligations of the Company when and as the same
shall become due and payable, whether upon exercise or otherwise, according to
the terms of the applicable Warrant Agreements; and (b) to the holders of the
Debt Warrants the punctual performance of the obligations of the Company
according to the terms of the Debt Warrant Agreement (the obligations set forth
in clauses (a)-(b) being herein called the "Guaranteed Obligations").
SECTION 2. ABSOLUTE LIABILITY. The Guarantor hereby guarantees
that the Guaranteed Obligations will be paid to the Holders strictly in
accordance with the terms and conditions hereof, and that the liability of the
Guarantor under this Guarantee shall be absolute and unconditional irrespective
of:
(a) the validity or enforceability of the Securities or the
Warrant Agreements;
(b) any contest by the Company or any other person as to the
amount of the Guaranteed Obligations or the validity or
enforceability of the Securities or the Warrant
Agreements;
(c) any defense, counter-claim or right of set-off available
to the Company;
(d) any extension of the time or times for payment of the
Guaranteed Obligations or any other indulgences which
the Holders may grant to the Company or any amendment to
or alteration of the Warrant Agreements or the
Securities; and
(e) any other circumstances which might otherwise constitute
a defense available to, or a discharge of, the
Guarantor, the Company or any other person in respect of
the Guaranteed Obligations or the Guarantor in respect
of the Guarantee.
SECTION 3. REMEDIES. The guarantees set forth in Sections 1(a)
constitute present and continuing guarantees of payment and performance and not
of collection. The guarantee set forth in Section 1(b) constitutes a present and
continuing guarantee of performance. 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 Holders 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 or
performance hereunder. The Guarantor hereby waives the right to require the
Holders to join the Company in any action brought hereunder or to commence any
action against or obtain any judgment against the Company or to pursue any other
remedy or enforce any other right. The Guarantor further agrees that nothing
contained herein or otherwise shall prevent the Holders from pursuing
concurrently or successively all rights and remedies available to them at law
and/or in equity or under the Warrant Agreements, 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 4. PAYMENT ON DEMAND. The Guarantor shall make payment of
the amount of the Guaranteed Obligations and all other amounts payable by it (or
performance with respect to the Debt Warrants) to the Holders hereunder
forthwith after demand therefor is made in writing to it and such demand shall
be deemed to have been effectively made when an envelope containing such demand,
addressed to it c/o Newcourt Credit Group, BCE Place, 181 Bay Street,
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P.O. Box 827, Toronto, Ontario, M5J 2T3 for the attention of President, is
personally delivered to such address.
SECTION 5. SUBROGATION. Upon receipt by the Holders of any
payment or payments (or performance with respect to the Debt Warrants) on
account of liability under this Guarantee, the Guarantor shall not be entitled
to claim repayment against the Company until the claims of the Holders against
the Company in respect of the Guaranteed Obligations have been repaid (or
performed with respect to the Debt Warrants) in full; and in the case of the
liquidation, winding-up or bankruptcy of the Company (whether voluntary or
compulsory) or in the event that the Company shall make a bulk sale of any of
the Company's assets within the provisions of any bulk sales legislation or
makes an assignment for the benefit of creditors or the assets of the Company
are distributed to creditors for any other reason, the Holders shall have the
right to rank in priority to the Guarantor for their full claims in respect of
the Guaranteed Obligations and receive all distributions and other payments in
respect thereof until their claims in respect of the Guaranteed Obligations have
been paid in full, and the Guarantor shall continue to be liable, less any
payments made by or on behalf of the Guarantor, for any balance which may be
owing to the Holders by the Company. If any amount shall be paid to the
Guarantor on account of any subrogation rights at any time when all the
Guaranteed Obligations shall not have been paid in full, such amount shall be
held in trust for the benefit of the Holders and shall forthwith be paid to the
Holders.
SECTION 6. SUBORDINATION. All obligations, liabilities and
indebtedness of the Company to the Guarantor of any nature whatsoever (the
"Corporate Indebtedness") be subordinated to the payment in full of all
obligations owing by the Company to the Holders. The Guarantor shall not assign
the Corporate Indebtedness nor any part thereof to any person other than to a
subsidiary of the Company which has provided a guarantee to the Holders in
respect of the Guaranteed Obligations in the form and substance of this
Guarantee, without the prior written consent of the Holders.
SECTION 7. SUSPENSION OF GUARANTOR RIGHTS. The Guarantor agrees
that so long as any obligations remain outstanding hereunder, whether present or
future, direct or indirect, absolute or contingent, matured or not, the
Guarantor shall not exercise any rights which the Guarantor may at any time have
by reason of the performance of any of its obligations hereunder:
(i) to be indemnified by the Company;
(ii) to claim contribution from any other guarantor of the
debts, liabilities or obligations of the Company; or
(iii) to take the benefit (in whole or in part and whether by
way of subrogation or otherwise) of any rights of the
Holders under the Warrant Agreements.
SECTION 8. WAIVERS. The Guarantor hereby waives, to the extent
permitted by applicable law, (i) notice of acceptance of this Guarantee by the
Holders and any and all notices and
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demands of every kind which may be required to be given by any statute, rule or
law, (ii) any defense, right of set-off or other claim which the Guarantor may
have against the Company or which the Guarantor or the Company may have against
the Holders, (iii) presentment for payment, demand for payment, notice of
nonpayment or dishonor, protest and notice of protest, diligence in collection
and any and all formalities which otherwise might be legally required to charge
the Guarantor with liability, except for demands or notices expressly provided
for herein, (iv) any failure by the Holders to inform the Guarantor of any facts
the Holders may now or hereafter know about the Company, the Securities or the
transactions contemplated by the Warrant Agreements, it being understood and
agreed that the Holders 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. No modification or waiver of any of the
provisions of this Guarantee shall be binding upon the Holders except as
expressly set forth in a writing duly signed and delivered on behalf of the
Holders; provided, however, the Company, the Guarantor and [ ] may amend this
Guarantee to cure any ambiguity, defect or inconsistency herein, provided no
such action shall adversely affect the rights of any Holder.
SECTION 9. CONTINUING GUARANTEE. The guarantee herein shall be a
continuing guarantee and shall extend to all present and future Guaranteed
Obligations and shall be binding as a continuing obligation of the Guarantor
until the earlier of (i) the Holders release the Guarantor from any further
obligation hereunder; and (ii) the date on which the Company or the Guarantor
shall have performed and satisfied in full the Guaranteed Obligations. This
Guarantee shall continue to be effective or be reinstated, as the case may be,
if at any time any payment (or performance with respect to the Debt Warrants) of
any of the Guaranteed Obligations is rescinded or must otherwise be refunded by
the Holders upon the insolvency, bankruptcy or reorganization of the Company or
otherwise, regardless of whether the Holders contested the order requiring the
return of such payment, all as though such payment had not been made.
SECTION 10. INTEREST ACT (CANADA). The Guarantor acknowledges
that, for the purposes of the Interest Act (Canada), (i) whenever any interest
or fee applicable to the Guaranteed Obligations is calculated using a rate based
on a year of 360 days or 365 days, such rate determined pursuant to such
calculation, when expressed as an annual rate, is equivalent to (x) the
applicable rate based on a year of 360 days or 365 days, as the case may be, (y)
multiplied by the actual number of days in the calendar year in which the period
for which such interest or fee is payable (or compounded) ends, and (z) divided
by 360 or 365 as the case may be; (ii) the principle of deemed reinvestment of
interest does not apply to any interest calculation in respect of the Guaranteed
Obligations; and (ii) the rates of interest stipulated in respect of the
Guaranteed Obligations are intended to be nominal rates and not effective rates
or yields.
SECTION 11. 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
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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 12. NO RECOURSE. Any right of subrogation acquired by the
Guarantor by reason of payment under or pursuant to this Guarantee shall not be
exercised until the Guaranteed Obligations and other amounts due to the Holders
hereunder have been paid or repaid in full and shall be no greater than the
right held by the Holders, and the Guarantor shall have no recourse against the
Holders for any irregularity or defect in the manner or procedure by which the
Holders make demand or pursue any rights or remedies they may have.
SECTION 13. 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
Province of Ontario.
(b) CORPORATE POWER. It has full corporate right, power and
authority to own its property and assets and to carry on
its business as now conducted and as contemplated to be
conducted and to enter into and perform this Guarantee.
(c) CONFLICT WITH OTHER INSTRUMENTS. Neither the execution and
delivery of this Guarantee nor the consummation of the
transactions herein contemplated nor compliance with the
terms, conditions and provisions hereof (i) conflicts with
or results in a breach of any of the terms, conditions or
provisions of (A) its charter documents or by-laws; (B)
any law, rule or regulation having the force of law; (C)
any material contractual restriction binding on or
affecting it or its properties; or (D) any writ, judgment,
injunction, determination or award which is binding on it;
or (ii) results in, or requires the creation or imposition
of any lien upon or security interest in or with respect
to the properties now owned or hereafter acquired by it
under any contractual provision binding on or affecting
it.
(d) AUTHORIZATION, GOVERNMENTAL APPROVALS ETC. The execution
and delivery of this Guarantee and the consummation by it
of the transactions herein contemplated have been duly
authorized by all necessary corporate action and no
authorization, consent, approval, license or exemption
under any applicable law, rule or regulation having the
force of law, and no registration, qualification,
designation, declaration, recording, or filing with any
official body, is or was necessary therefor or to perfect
the same or to preserve the benefit thereof to the
Holders, except such as are in full force and effect,
unamended, at the date hereof.
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(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 general and the
effect of general principles of equity (regardless of
whether such enforceability is considered in a proceeding
in equity or at law).
(f) ACTIONS. There is no pending or threatened action or
proceeding affecting it before any court, governmental
agency or arbitrator, which may materially adversely
affect its financial condition or operations.
(g) SHARES. The Guarantor is the registered and beneficial
holder of 100% of the issued and outstanding shares of the
capital stock of the Company.
SECTION 14. PAYMENT OF TAXES AND OTHER TAXES. (a) The Guarantor
hereby agrees to obtain any necessary exchange control approvals, consents or
authorizations which may at any time and from time to time be required by the
laws of the Province of Ontario or any state in the United States in connection
with the making of payments hereunder. Any and all payments by the Guarantor
hereunder shall be made and shall be free and clear of and without set-off or
counterclaim and without deduction for or on account of, or withholding for any
and all present or future income or other taxes, levies, imposts, dues, charges,
fees, deductions, withholdings or restrictions or conditions of any nature
whatever now or hereafter imposed, levied, collected or withheld or assessed by
any country (or by any political subdivision or taxing authority thereof or
therein), and all liabilities with respect thereto (all such taxes, levies,
imposts, duties, charges, fees, deductions, withholdings and liabilities being
hereinafter referred to as "Taxes") unless such Taxes are required by law or the
administration thereof to be deducted or withheld. If the Guarantor shall be
required by law to deduct or withhold any Taxes from or in respect of any amount
payable hereunder, subject as provided in the next following sentence, (i) the
sum payable shall be increased as may be necessary so that after making all
required deductions or withholdings (including deduction or withholding
applicable to additional amounts paid under this Section), the Holders receive
an amount equal to the sum they would have received if no deduction or
withholding had been made, (ii) the Guarantor shall make such deductions or
withholdings, and (iii) the Guarantor shall pay the full amount deducted or
withheld to the relevant taxation or other authority in accordance with
applicable law.
(b) The Guarantor shall pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies (all such taxes, charges and levies being hereinafter referred to as
"Other Taxes") which arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this
Guarantee.
(c) The Guarantor shall indemnify the Holders for the full amount
of Taxes or Other Taxes (including, without limitation, any Taxes or Other Taxes
imposed by any jurisdiction on amounts payable under this Section) paid by the
Holders and any liability (including penalties, interest
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and expenses) arising therefrom or with respect thereto, whether or not such
Taxes or Other Taxes were correctly or legally asserted. Payment under this
indemnification shall be made within 30 days from the date the Holders make
written demand therefor. A certificate as to the amount of such Taxes or Other
Taxes submitted to the Guarantor by the Holders and evidence of payment thereof
shall, in the absence of manifest error, be prima facie evidence of the amount
due by the Guarantor to the Holders.
SECTION 15. GOVERNING LAW. (a) This Guarantee shall be governed
by and construed in accordance with the laws of the State of New York applicable
therein and shall be treated in all respects as a New York contract.
(b) The Guarantor hereby (i) irrevocably submits to the
jurisdiction of any court sitting in the State of New York over any suit, action
or proceeding arising out of or relating to this Guarantee or the Warrant
Agreements; (ii) irrevocably agrees that all claims in respect of any such
action or proceeding may be heard and determined in such court; (iii)
irrevocably waives, to the fullest extent permitted by law, any objection which
it may have or hereafter have to the laying of the venue of any such suit,
action or preceding brought in such a court and any claim that any such suit,
action or proceeding brought in such a court has been brought in an inconvenient
forum; and (iv) irrevocably appoints Newcourt Credit Group USA, Inc. (the
"Process Agent"), with an office at the date hereof at 44 Whippany Road,
Morristown, NJ 07960 (Fax No. 973/397-4435), its authorized agent to accept and
acknowledge service of any and all process which may be served in any suit,
action or proceeding. Such service may be made by delivering a copy of such
process to the Guarantor in care of the Process Agent at the Process Agent's
above address and the Guarantor hereby irrevocably authorizes and directs the
Process Agent to accept such service on its behalf. As an alternative method of
service, the Guarantor also irrevocably consents to the service of any and all
process in any such action or proceeding by the delivery of copies of such
process to the Guarantor to: BCE Place, 181 Bay Street, P.O. Box 827, Toronto,
Canada M5J2T3 for the attention of President. The Guarantor agrees that a final
judgment in any such action or proceeding may be enforced in any other manner
provided by law. Nothing in this Section shall affect the right of the Holders
to serve process in any manner permitted by law or limit the rights of the
Holders to bring proceedings against the Guarantor in the courts of any other
jurisdiction.
(c) Subject to Section ___, the Guarantor hereby consents in
respect of any legal action or proceedings arising out of or in connection with
this Guarantee for the payment and performance hereof to the giving of any
relief or the issue of any process in connection with such action or
proceedings, including, without limitation the making, enforcement or execution
against any property whatsoever (irrespective of its use or intended use) of any
order or judgment which may be made or given in such action or proceedings.
(d) To the extent that the Guarantor has or hereafter may acquire
any immunity from the jurisdiction of any court or from any legal process
(whether service of notice, attachment prior to judgment, attachment in the aid
of execution, execution or otherwise) with respect to itself or its property,
the Guarantor hereby irrevocably waives, to the fullest extent permitted by law,
such
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immunity in respect of its obligations under this Guarantee and any security for
the payment and performance hereof.
(e) Nothing in this Section shall constitute a waiver by the
Guarantor of any right to (i) appeal any order or judgment referred to herein;
(ii) seek any stay or reconsideration or review of any such order or judgment,
or (iii) seek any stay of execution or levy pending any appeal from, or suit,
action or proceeding for reconsideration or review of, any such order or
judgment.
(f) The Guarantor agrees that the Holders shall have the right to
proceed against the Guarantor or its property in a court in any location to
enable such person to (i) obtain personal jurisdiction over the Guarantor, or
(ii) to enforce a judgment or other court order entered in favor of such person.
The Guarantor agrees that it will not assert any permissive counterclaims in any
proceeding brought by such person to enforce a judgment or other court order in
favor of such person. The Guarantor waives any objection that it may have to the
location of the court in which such person has commenced a proceeding described
in this subsection.
SECTION 16. 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 17. 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 18. SUCCESSORS AND ASSIGNS. This Guarantee shall extend
to and inure to the benefit of [ ] and the Holders and their respective
successors and assigns and shall be binding upon the Guarantor and its
successors and assigns. This Guarantee is assignable by the Holders to the
extent and in the same proportion that any underlying interest in the Securities
and applicable Warrant Agreements has been assigned.
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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.
NEWCOURT CREDIT GROUP INC.
Attest:
By:_______________________________ By:_______________________________
Glen J. DuMont Glenn A. Votek
Assistant Secretary Executive Vice President
and Treasurer
By:_______________________________
DOCUMENT NUMBER: 0318536.02
4-27-98/11:58pm
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