FORM OF DEBT SECURITIES GUARANTEE
Guarantee dated as of March 1, 1999 (this "Guarantee"), 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 The Chase Manhattan Bank, as Trustee (together with
its successors and assigns, the "Trustee"), for the benefit of the registered
holders of the Securities (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 will issue from time to time debentures, notes
and other obligations, which are issuable in one or more series (the
"Securities"), pursuant to the Indenture dated as of March 1, 1999 by and
among the Guarantor, the Company and the Trustee (the "Indenture").
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. Guarantee. The Guarantor hereby irrevocably and
unconditionally guarantees (as a guarantor and not as a surety) to the Trustee
for the benefit of each Holder of the Securities the due and punctual payment of
the principal of, premium, if any and interest on the Securities when and as the
same shall become due and payable, whether at maturity, upon redemption or
otherwise, according to the terms of the Indenture (the obligations set forth in
this Section 1 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 Indenture;
(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 Indenture;
(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 Indenture or the Securities;
(e) the commencement by or against the Company or the Guarantor or any
other Person of any proceedings under any bankruptcy or insolvency law or laws
relating to the relief of debtors, readjustment of indebtedness,
reorganizations, arrangements, compositions or extension or other similar laws;
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 the
Guarantee.
Section 3. Remedies. The guarantee set forth in Section 1 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 neither the
Trustee nor the Holders shall be bound to exhaust their recourse against the
Company or any other Person or to make demand upon the Company 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 Trustee or 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 Trustee or the Holders from pursuing concurrently or successively
all rights and remedies available to them at law and/or in equity or under the
Indenture, 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 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 the
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 5. 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
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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") 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 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 Trustee for the benefit of 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:
(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 Indenture.
Section 8. Waivers. The Guarantor hereby waives, to the extent permitted
by applicable law any and all defenses available to guarantors, sureties and
other secondary parties at law or in equity, including without limitation, (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, notice of default or event of default under the
Indenture, protest and notice of protest, diligence or promptness in collection
or enforcement 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 or the Trustee to
inform the Guarantor of any facts the Holders or the Trustee may now or
hereafter know about the Company, the Securities or the transactions
contemplated by the Indenture, it being understood and agreed that the Holders
or the Trustee have no duty to so inform the Guarantor, 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
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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 9. Amendment.
(a) With the written consent of the Holders of a majority in principal
amount of the outstanding Securities of each Series (with each Series voting as
a class), the Guarantor and the Trustee may add any provisions or change or
eliminate any provisions of this Guarantee, or modify in each case in any
manner, the rights of the Holders of each such Series under this Guarantee. The
Holders of a majority in principal amount of the outstanding Securities of each
Series affected by such waiver (with each Series voting as a class), by notice
to the Trustee, may waive compliance by the Guarantor with any provision of this
Guarantee; but no such waiver shall extend to or affect (x) any other Series of
Securities or (y) such provision except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Guarantor in
respect to any such provision shall remain in full force and effect; provided,
however, without the consent of each Holder affected, an amendment or waiver may
not (i) reduce the amount of Securities whose Holders must consent to an
amendment or waiver or (ii) make any changes in Section 1;
(b) Notwithstanding the provisions of Section 9(a), the Guarantor and the
Trustee may amend this Guarantee to cure any ambiguity, defect or inconsistency
herein or to make any other change; provided, however, no such action shall
adversely affect the rights of any Holder; and
(c) The Trustee need not enter into any such amendment that adversely
affects its rights, duties or immunities hereunder or otherwise and shall be
entitled to receive as a condition to entering into any such amendment an
Opinion of Counsel and Officers' Certificate complying with Sections 10.04 and
10.05 of the Indenture.
Section 10. 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 Article 8 of the Indenture; 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 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 11. 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
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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 12. 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 or any change in the ownership of any shares of the
capital stock of the Company shall not affect or in any way limit or lessen the
liability of the Guarantor hereunder.
Section 13. 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 14. 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 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 or impair the
ability of the Guarantor to perform its obligations under this Guarantee. The
Guarantor is not in default with respect to any order of any court, governmental
authority or arbitrator, the effect of which would have a material adverse
effect on the Guarantor and its subsidiaries on a consolidated basis.
(g) Shares. The Guarantor, through a subsidiary of which it is the
registered and beneficial holder of 100% of the issued and outstanding shares of
the capital stock, is the registered and beneficial holder of 100% of the issued
and outstanding shares of the capital stock of the Company.
Section 15. 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 witholding 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.
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(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
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 16. 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 Indenture; (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 proceeding 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), 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 M5J 2T3 for the attention of the
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 bring
proceedings against the Guarantor in the courts of any other jurisdiction.
(c) Subject to Section 16(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.
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(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 Trustee or 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 17. 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 18. 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 19. Successors and Assigns. This Guarantee shall extend to and
inure to the benefit of the Trustee and the Holders and their respective
successors and assigns. The Guarantee is assignable by the Holders to the
extent and in the same proportion that any underlying interest in the
Securities and the Indenture has been assigned and is assignable by the
Trustee to any successor Trustee under the Indenture.
[Signature Page Follows]
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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:
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