GUARANTEE
Guarantee dated as of December 15, 1998, made by AT&T Capital
Corporation (together with its successors and assigns, the "Guarantor"), a
Delaware corporation, to and in favor of The Chase Manhattan Bank, as Trustee
(together with its successors and assigns, the "Trustee") under the Indenture
(as defined herein), for the benefit of the registered holders of the Securities
(as defined herein) (collectively, the "Holders").
WHEREAS the Guarantor is an indirect wholly-owned subsidiary of
Newcourt Credit Group Inc., a corporation incorporated under the laws of the
Province of Ontario (the "Company");
WHEREAS the Company will issue from time to time debentures,
notes and other evidences of indebtedness, (the "Securities") pursuant to the
Indenture dated as of December 15, 1998 by and among the Company and The Chase
Manhattan Bank, as Trustee (the "Indenture");
and WHEREAS the Guarantor, as an indirect wholly-owned subsidiary
of the Company, will derive substantial and direct benefits (which benefits are
hereby acknowledged by the Guarantor) from the issuance and sale of the
Securities.
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 the Holders of the Securities the due and punctual payment of
the principal of, premium, if any, and interest on such 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; 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 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 the 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 Road, 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 the 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 Holders by the Company.
If any amount shall be paid to the Guarantor on account of any subrogation
rights at any time when
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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, (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, (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 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.
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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
to 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 or 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.
(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
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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 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 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 and from time to time carrying on the business
of the Company.
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
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 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
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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 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.
(g) SHARES. The Company is the registered and beneficial
holder of 100% of the issued and outstanding shares of
the capital stock of Newcourt Credit Group USA Inc.;
Newcourt Credit Group USA Inc. is the registered and
beneficial holder of 100% of the issued and outstanding
shares of the capital stock of the Guarantor.
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
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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 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 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 Inc.
(the "Process Agent"), with an office at the date hereof
at 2 Gatehall Drive, NJ 07054 (Fax No. 973/355-7058), 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
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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: c/o Newcourt Credit
Group Inc., 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 Trustee or 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.
(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.
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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 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 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.
AT&T CAPITAL CORPORATION
By: /s/ GLENN A. VOTEK
--------------------------------------------
Name: Glenn A. Votek
Title: Executive Vice President
and Treasurer