1
Form 8-K October 2, 1998
Exhibit 99(a)
GUARANTEE
Guarantee dated as of October 28, 1998, made by Newcourt Credit Group
Inc. (together with its successors and assigns, the "Guarantor"), a corporation
incorporated under the laws of the Province of Ontario, to and in favor of and
for the benefit of all holders of Debt (as such term is herein defined)
(collectively, the "Holders").
WHEREAS the Guarantor is the indirect parent and owner of all the
issued and outstanding capital stock of AT&T Capital Corporation (the
"Company"); and
WHEREAS the Company may from time to time incur, assume or guarantee
additional Debt; and
WHEREAS, the Guarantor has agreed to guarantee the payment of all Debt
incurred by (or to be incurred by) the Company.
NOW THEREFORE, in consideration of the foregoing premises, and other
good and valuable consideration given by the Holders and the Company to the
Guarantor, the receipt and sufficiency of which are hereby acknowledged, the
Guarantor hereby agrees as follows (capitalized terms used but not defined
herein shall be as defined in the Indenture):
SECTION 1. DEFINITIONS. For purposes hereof,
(a) the term "Debt" shall mean (i) any indebtedness for borrowed money
incurred by the Company from any individual, corporation, partnership,
trust, association or other entity of any kind (each herein a "Person") and
(ii) indebtedness for borrowed money of any Person to another Person
assumed or guaranteed by the Company; provided that neither of the
following shall constitute Debt for purposes of this Guarantee: (x) any
indebtedness for borrowed money incurred, assumed or guaranteed from time
to time by the Company 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 Guarantee; 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 the Company 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
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Form 8-K October 2, 1998
Exhibit 99(a)
assets) of the Company or any direct or indirect subsidiary thereof and
which indebtedness (or guaranty) is not a general obligation of the
Company.
(b) the term "Debt Agreement" shall mean any and all agreements evidencing or
made in connection with the incurrence of any Debt.
SECTION 2. GUARANTEE. The Guarantor hereby, irrevocably and
unconditionally guarantees (as a guarantor and not as a surety) to the Holders
of the Debt the due and punctual payment of the principal of, premium, if any
and interest on such Debt when and as the same shall become due and payable,
whether at maturity, upon redemption or otherwise, according to the terms of the
applicable Debt Agreements (the obligations set forth in this Section 2 being
herein called the "Guaranteed Obligations").
SECTION 3. 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 Debt;
(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 Debt;
(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 Debt; 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 4. REMEDIES. The guarantee set forth in Section 2 constitutes a
present and continuing guarantee of payment and performance and not of
collection. The Guarantor agrees that its obligations hereunder shall be joint
and several with any and all other guarantees given in connection with the
Guaranteed Obligations from time to time. The Guarantor agrees that the Holders
shall not be bound to exhaust their recourse against the Company or any other
person or to make demand upon the Company or
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Form 8-K October 2, 1998
Exhibit 99(a)
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 any Debt
Agreement, 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. PAYMENT ON DEMAND. The Guarantor shall make payment of the
amount of the Guaranteed Obligations and all other amounts payable by it to the
Holders hereunder forthwith after demand therefor is made in writing to it and
such demand shall be deemed to have been effectively made when either an
envelope containing such demand, addressed to it c/o Newcourt Credit Group Inc.,
2 Gatehall Drive, Parsippany, New Jersey, 07054 for the attention of Treasurer,
is personally delivered to such address or a facsimile transmission containing
such demand is sent to Guarantor, for the attention of the Treasurer, at the
following fax number: (973) 355-7021.
SECTION 6. SUBROGATION. Upon receipt by the Holders of any payment or
payments on account of liability under this Guarantee, the Guarantor shall not
be entitled to claim repayment against the Company until the claims of the
Holders against the Company in respect of the Guaranteed Obligations have been
repaid in full; and in the case of the liquidation, winding-up or bankruptcy of
the Company (whether voluntary or compulsory) or in the event that the Company
shall make a bulk sale of any of the Company's assets within the provisions of
any bulk sales legislation or makes an assignment for the benefit of creditors
or the assets of the Company are distributed to creditors for any other reason,
the Holders shall have the right to rank in priority to the Guarantor for their
full claims in respect of the Guaranteed Obligations and receive all
distributions and other payments in respect thereof until their claims in
respect of the Guaranteed Obligations have been paid in full, and the Guarantor
shall continue to be liable, less any payments made by or on behalf of the
Guarantor, for any balance which may be owing to the Holders by the Company. If
any amount shall be paid to the Guarantor on the 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.
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Form 8-K October 2, 1998
Exhibit 99(a)
SECTION 7. SUBORDINATION. All obligations, liabilities and indebtedness
of the Company to the Guarantor of any nature whatsoever (the "Corporate
Indebtedness") shall be subordinated to the payment in full of all obligations
owing by the Company to the Holders, and any payments received by the Guarantor
on account of such Corporate Indebtedness at a time when any Default or Event of
Default exists (as each such term is defined in the governing Debt Agreement)
shall be collected and received by the Guarantor in trust and paid over to the
Holders without impairing or releasing any obligations of the Guarantor
hereunder. The Guarantor shall not assign the Corporate Indebtedness nor any
part thereof to any person other than to a subsidiary of the Company which has
provided a guarantee to the Holders in respect of the Guaranteed Obligations in
the form and substance of this Guarantee, without the prior written consent of
the Holders.
SECTION 8. SUSPENSION OF GUARANTOR RIGHTS. The Guarantor agrees that so
long as any obligations remain outstanding hereunder, whether present or future,
direct or indirect, absolute or contingent, matured or not, the Guarantor shall
not exercise any rights which the Guarantor may at any time have by reason of
the performance of any of its obligations hereunder:
(a) to be indemnified by the Company;
(b) to claim contribution from any other guarantor of the debts, liabilities or
obligations of the Company; or
(c) to take the benefit (in whole or in part and whether by way of subrogation
or otherwise) of any rights of the Holders under the governing Debt
Agreements.
SECTION 9. WAIVERS. The Guarantor hereby waives, to the extent
permitted by applicable law, (i) notice of acceptance of this Guarantee by the
Holders and any and all notices and demands of every kind which may be required
to be given by any statute, rule or law, (ii) any defense, right of set-off or
other claim which the Guarantor may have against the Company or which the
Guarantor or the Company may have against the Holders, (iii) presentment for
payment, demand for payment, notice of nonpayment or dishonor, protest and
notice of protest, diligence in collection and any and all formalities which
otherwise might be legally required to charge the Guarantor with liability,
except for demands or notices expressly provided for herein, (vi) any failure by
the Holders to inform the Guarantor of any facts the Holders may now or
hereafter know about the Company, the Debt or the transactions contemplated by
the governing Debt Agreement, it being understood and agreed that the Holders
have no duty to so inform the Guarantor, 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
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Form 8-K October 2, 1998
Exhibit 99(a)
or nonperformance of the Guaranteed Obligations and (v) any and all right to
cause a marshaling of assets of the Company or any other action by any court or
governmental body with respect thereto.
SECTION 10. AMENDMENT. This Guarantee may be amended or terminated by
the Guarantor 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 the Company 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 (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, consents) in writing to such amendment or
termination.
SECTION 11. RIGHTS OF HOLDERS OF DEBT. All holders of Debt incurred,
assumed or guaranteed by the Company during the term of this Guarantee or
incurred, assumed and guaranteed by the Company prior to the date hereof shall
be intended third-party beneficiaries of this Guarantee.
SECTION 12. CONTINUING GUARANTEE. The guarantee herein shall be a
continuing guarantee and shall extend to all present and future Guaranteed
Obligations and shall be binding as a continuing obligation of the Guarantor
until the earlier of (i) the date the Guarantor is released from any further
obligation hereunder in accordance with the terms of the relevant governing Debt
Agreement; and (ii) the date on which the Company or the Guarantor shall have
performed and satisfied in full the Guaranteed Obligation. This Guarantee shall
continue to be effective or be reinstated, as the case may be, if at any time
any payment of any of the Guaranteed Obligations is rescinded or must otherwise
be refunded by the Holders upon the insolvency,
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Form 8-K October 2, 1998
Exhibit 99(a)
bankruptcy or reorganization of the Company or otherwise, regardless of whether
the Holders contest the order requiring the return of such payment, all as
though such payment had not been made.
SECTION 12. 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; (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. 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 caring on the business of
the Company.
SECTION 14. 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 15. 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 as
contemplated to be conducted and to enter into and perform this Guarantee.
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Form 8-K October 2, 1998
Exhibit 99(a)
(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.
(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.
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Form 8-K October 2, 1998
Exhibit 99(a)
SECTION 16. 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 counter claim 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 withholding applicable to
additional amounts paid under this Section), the Holders receive an amount
equal to the sum they would have received if no deduction or withholding
had been made, (ii) the Guarantor shall make such deductions or
withholdings, and (iii) the Guarantor shall pay the full amount deducted or
withheld to the relevant taxation or other authority in accordance with
applicable law.
(b) The Guarantor shall pay any present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies (all such
taxes, charges and levies being hereinafter referred to as "Other Taxes")
which arise from any payment made hereunder or from the execution, delivery
or registration of, or otherwise with respect to, this Guarantee.
(c) The Guarantor shall indemnify the Holders for the full amount of Taxes or
Other Taxes (including, without limitation, any Taxes or Other Taxes
imposed by any jurisdiction on amounts payable under this Section) paid by
the Holders and any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto, whether or not such Taxes or
Other Taxes were correctly or legally asserted. Payment under this
indemnification shall be made within 30 days from the date the Holders make
written demand therefor. A
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Form 8-K October 2, 1998
Exhibit 99(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 17. 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; (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 nay claim that 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 2 Gatehall Drive, Parsippany, NJ 07054
(Fax No. (973) 355-7059), it 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 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 Trustee or the Holders to
service 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.
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Form 8-K October 2, 1998
Exhibit 99(a)
(c) Subject to Section 17(e), the Guarantor hereby consents in respect of any
legal action or proceedings arising out of or in connection with this
Guarantee for the payment and performance hereof to the giving of any
relief or the issue of any process in connection with such action or
proceedings, including, without limitation the making, enforcement or
execution against any property whatsoever (irrespective of its use or
intended use) of any order or judgment which may be made or given in such
action or proceedings.
(d) To the extent that the Guarantor has or hereafter may acquire any immunity
from the jurisdiction of any court or from any legal process (whether
service of notice, attachment prior to judgment, attachment in the aid of
execution, execution or otherwise) with respect to itself or its property,
the Guarantor hereby irrevocably waives, to the fullest extent permitted by
law, such immunity in respect of its obligations under this guarantee and
any security for the payment and performance hereof.
(e) Nothing in this Section shall constitute a waiver by the Guarantor of any
right to (i) appeal any order or judgment referred to herein; (ii) seek any
stay or reconsideration or review of any such order or judgment, or (iii)
seek any stay of execution or levy pending any appeal from, or suit, action
or proceeding for reconsideration or review of, any such order or judgment.
(f) The Guarantor agrees that the 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 counterclaim 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 18. EFFECT OF SUPPORT AGREEMENT. By executing this Guarantee,
the Support Agreement dated as of February 9, 1998 between the Guarantor and the
Company is hereby [terminated] [modified to exclude the Guaranteed Obligations].
SECTION 19. 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.
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Form 8-K October 2, 1998
Exhibit 99(a)
SECTION 20. 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 21. SUCCESSORS AND ASSIGNS. This Guarantee shall extend to and
inure to the benefit of the Holders and their respective successors and assigns
and shall be binding upon the Guarantor and its successors and assigns. The
Guarantee is assignable by the Holders to the extent and in the same proportion
that any underlying interest in the Debt and the relevant applicable Debt
Agreements has been assigned and is assignable by the Holder.
IN WITNESS WHEREOF, the Guarantor has duly executed this Guarantee as
of the day and year first above written.
NEWCOURT CREDIT GROUP INC.
By: ____________________________
Name:
Title:
By: _____________________________
Name:
Title: