EXHIBIT 4J
GUARANTEE
Guarantee dated as of April 1, 1998, made by Newcourt Credit
Group Inc. (the "Guarantor"), a corporation incorporated under the laws of the
Province of Ontario, to and in favor of The Chase Manhattan Bank, as Trustee
(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 the owner of all the issued and
outstanding capital stock of AT&T Capital Corporation (the "Company");
AND WHEREAS the Company will issue from time to time debt
securities (the "Securities") pursuant to the Indenture dated as of April 1,
1998 by and among the Guarantor, the Company and the Chase Manhattan Bank, as
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:
SECTION 1. GUARANTEE. The Guarantor hereby, irrevocably and
unconditionally guarantees (as a guarantor and not as a surety) to 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 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 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 to realize on any security they may
hold in respect of the Guaranteed Obligations before being entitled to payment
or performance hereunder. The Guarantor hereby waives the right to require the
Holders to join the Company in any action brought hereunder or to commence any
action against or obtain any judgment against the Company or to pursue any other
remedy or enforce any other right. The Guarantor further agrees that nothing
contained herein or otherwise shall prevent the Holders from pursuing
concurrently or successively all rights and remedies available to them at law
and/or in equity or under the 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, BCE
Place, 000 Xxx Xxxxxx, X.X. Xxx 000, Xxxxxxx, Xxxxxxx, X0X 0X0 for the attention
of President, is personally delivered to such address or a facsimile
transmission containing such demand is sent to the Guarantor, for the attention
of its President, at the following fax number: (000) 000-0000.
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.
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SECTION 6. SUBORDINATION. All obligations, liabilities and
indebtedness of the Company to the Guarantor of any nature whatsoever (the
"Corporate Indebtedness") be subordinated to the payment in full of all
obligations owing by the Company to the Holders, and any payments received by
the Guarantor on account of such Corporate Indebtedness at a time when any
Default or Event of Default (as defined in the Indenture) 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 Holders in respect of the Guaranteed Obligations in the form
and substance of this Guarantee, without the prior written consent of the
Holders.
SECTION 7. SUSPENSION OF GUARANTOR RIGHTS. The Guarantor agrees
that so long as any obligations remain outstanding hereunder, whether present or
future, direct or indirect, absolute or contingent, matured or not, the
Guarantor shall not exercise any rights which the Guarantor may at any time have
by reason of the performance of any of its obligations hereunder:
i. to be indemnified by the Company;
ii. to claim contribution from any other guarantor of the
debts, liabilities or obligations of the Company; or
iii. to take the benefit (in whole or in part and whether by
way of subrogation or otherwise) of any rights of the
Holders under the 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. No modification or waiver of any of the
provisions of this Guarantee shall be binding upon the Holders except as
expressly set forth in a writing duly signed and delivered on behalf of the
Holders; provided, however, the Company, the Guarantor and the Trustee may amend
this Guarantee to cure any ambiguity, defect or inconsistency herein, provided
no such action shall adversely affect the rights of any Holder.
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SECTION 9. CONTINUING GUARANTEE. The guarantee herein shall be a
continuing guarantee and shall extend to all present and future Guaranteed
Obligations and shall be binding as a continuing obligation of the Guarantor
until the earlier of (i) the 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 10. INTEREST ACT (CANADA). The Guarantor acknowledges
that, for the purposes of the Interest Act (Canada), (i) whenever any interest
or fee applicable to the Guaranteed Obligations is calculated using a rate based
on a year of 360 days or 365 days, such rate determined pursuant to such
calculation, when expressed as an annual rate, is equivalent to (x) the
applicable rate based on a year of 360 days or 365 days, as the case may be, (y)
multiplied by the actual number of days in the calendar year in which the period
for which such interest or fee is payable (or compounded) ends, and (z) divided
by 360 or 365 as the case may be; (ii) the principle of deemed reinvestment of
interest does not apply to any interest calculation in respect of the Guaranteed
Obligations; and (ii) the rates of interest stipulated in respect of the
Guaranteed Obligations are intended to be nominal rates and not effective rates
or yields.
SECTION 11. SUCCESSORS OF THE COMPANY. Any change or changes in
the name of the Company or reorganization (whether by way of reconstruction,
consolidation, amalgamation, merger, transfer, sale, lease or otherwise) of the
Company or its business shall not affect or in any way limit or lessen the
liability of the Guarantor hereunder and this Guarantee shall extend to any
person, firm or Company acquiring or from time to time carrying on the business
of the Company.
SECTION 12. NO RECOURSE. Any right of subrogation acquired by the
Guarantor by reason of payment under or pursuant to this Guarantee shall not be
exercised until the Guaranteed Obligations and other amounts due to the Holders
hereunder have been paid or repaid in full and shall be no greater than the
right held by the Holders, and the Guarantor shall have no recourse against the
Holders for any irregularity or defect in the manner or procedure by which the
Holders make demand or pursue any rights or remedies they may have.
SECTION 13. REPRESENTATIONS AND WARRANTIES. The Guarantor
represents and warrants that:
(a) ORGANIZATION AND QUALIFICATION. It is a corporation duly
incorporated and validly existing under the laws of the
Province of Ontario.
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(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 bankruptcy, fraudulent conveyance, insolvency,
reorganization, moratorium or similar laws affecting
creditors' rights general and the effect of general principles
of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(f) ACTIONS. There is no pending or threatened action or
proceeding affecting it before any court, governmental agency
or arbitrator, which may materially adversely affect its
financial condition or operations.
(g) SHARES. The Guarantor is the registered and beneficial holder
of 100% of the issued and outstanding shares of the capital
stock of the Company.
SECTION 14. PAYMENT OF TAXES AND OTHER TAXES. The Guarantor
hereby agrees to obtain any necessary exchange control approvals, consents or
authorizations which may at
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any time and from time to time be required by the laws of the Province of
Ontario or any state in the United States in connection with the making of
payments hereunder. Any and all payments by the Guarantor hereunder shall be
made and shall be free and clear of and without set-off or counterclaim and
without deduction for or on account of, or withholding for any and all present
or future income or other taxes, levies, imposts, dues, charges, fees,
deductions, withholdings or restrictions or conditions of any nature whatever
now or hereafter imposed, levied, collected or withheld or assessed by any
country (or by any political subdivision or taxing authority thereof or
therein), and all liabilities with respect thereto (all such taxes, levies,
imposts, duties, charges, fees, deductions, withholdings and liabilities being
hereinafter referred to as "Taxes") unless such Taxes are required by law or the
administration thereof to be deducted or withheld. If the Guarantor shall be
required by law to deduct or withhold any Taxes from or in respect of any amount
payable hereunder, subject as provided in the next following sentence, (i) the
sum payable shall be increased as may be necessary so that after making all
required deductions or withholdings (including deduction or withholding
applicable to additional amounts paid under this Section), the Holders receive
an amount equal to the sum they would have received if no deduction or
withholding had been made, (ii) the Guarantor shall make such deductions or
withholdings, and (iii) the Guarantor shall pay the full amount deducted or
withheld to the relevant taxation or other authority in accordance with
applicable law.
(a) 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.
(b) 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 15. GOVERNING LAW. (a) This Guarantee shall be governed
by and construed in accordance with the laws of the State of New York applicable
therein and shall be treated in all respects as a New York contract.
(b) The Guarantor hereby (i) irrevocably submits to the
jurisdiction of any court sitting in the State of New York over any suit, action
or proceeding arising out of or relating to this Guarantee or the 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
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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 00 Xxxxxxxx Xxxx, Xxxxxxxxxx, XX
00000 (Fax No. 973/000-0000), 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, 000 Xxx Xxxxxx, X.X. Xxx 000, Xxxxxxx, Xxxxxx X0X0X0
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 15(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 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 and shall be binding upon the Guarantor and its
successors and assigns. This Guarantee is assignable by the Holders to the
extent and in the same proportion that any underlying interest in the Securities
and applicable Indenture has been assigned and is assignable by the Trustee to
any successor Trustee under the Indenture.
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IN WITNESS WHEREOF, the Guarantor has duly executed this
Guarantee and affixed its corporate seal under the hand of its proper officer(s)
duly authorized in that behalf as of the day and year first above written.
NEWCOURT CREDIT GROUP INC.
Attest:
By:______________________________ By:______________________________
Xxxx X. XxXxxx Xxxxx X. Xxxxx
Assistant Secretary Executive Vice President
and Treasurer
By:______________________________
DOCUMENT NUMBER: 313608.05
4-27-98/11:49pm
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