GUARANTEE
Guarantee dated as of February 15, 1999, 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 its 6.875% Notes, Series B due February
16, 2005 (together with any notes issued in replacement thereof in accordance
with the Registration Rights Agreement referred to below, the "Securities"),
pursuant to the Indenture dated as of February 15, 1999 among the Company, the
Guarantor and the Trustee (the "Indenture"); and
WHEREAS the Company and the Guarantor have entered into a Registration
Rights Agreement, dated February 10, 1999 (the "Registration Rights Agreement"),
pursuant to which they have agreed to take certain actions with respect to the
Securities and have agreed to pay certain amounts ("Liquidated Damages") in the
event they fail to take the required actions; 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 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, including any additional amounts
payable in respect of taxes or similar charges withheld or deducted and
Liquidated Damages under the Registration Rights Agreement; (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 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 AT&T Capital Corporation, 2
Gatehall Road, 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 the Guarantor, for the attention of the Treasurer, at the
following fax number: (973) 355-7021.
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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 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
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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 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, 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
the Securities under this Guarantee. The Holders of a majority in principal
amount of the outstanding Securities, 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 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.
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Section 11. Successors of the Guarantor. Any change or changes in the name
of the Guarantor or reorganization (whether by way of reconstruction,
consolidation, amalgamation, merger, transfer, sale, lease or otherwise) of the
Guarantor or its business or any change in the ownership of any shares of the
capital stock of the Guarantor shall not affect or in any way limit or lessen
the liability of the Guarantor hereunder.
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 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 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
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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, to its knowledge 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 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 14. Payment of Taxes and Other Taxes. (a) 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 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
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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) Subject to Section 15(d), the Guarantor hereby consents in respect of
any legal action or proceedings arising out of or in connection with this
Guarantee for the payment and performance hereof to the giving of any relief or
the issue of any process in connection with 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.
(c) To the extent that the Guarantor has or hereafter may acquire any
immunity from the jurisdiction of any court or from any legal process (whether
service of notice, attachment prior to judgment, attachment in the aid of
execution, execution or otherwise) with respect to itself or its property, the
Guarantor hereby irrevocably waives, to the fullest extent permitted by law,
such immunity in respect of its obligations under this Guarantee and any
security for the payment and performance hereof
(d) Nothing in this Section shall constitute a waiver by the Guarantor of
any right to (i) appeal any order or judgment referred to herein; (ii) seek any
stay or reconsideration or review of any such order or judgment, or (iii) seek
any stay of execution or levy pending any appeal from, or suit, action or
proceeding for reconsideration or review of, any such order or judgment.
(e) 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 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 the Trustee and the Holders and their respective
successors and assigns. This Guarantee is assignable by the Holders to the
extent and in the same proportion that any
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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
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