Exhibit 10.14
THE CIT GROUP, INC.
000 XXX Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
November 15, 1999
Address of Xxxxxx Guaranty Trust
Company of New York, as Agent
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Re: UNCONDITIONAL GUARANTY
Ladies and Gentlemen:
Reference is hereby made to the $765,000,000 Credit Agreement dated
as of April 13, 1998, as amended as of April 9, 1999, and as further amended or
otherwise modified pursuant to Amendment No. 2 thereto (the "SECOND AMENDMENT"),
dated November 15, 1999 (as so amended, and as hereafter amended or otherwise
modified from time to time, the "CREDIT AGREEMENT"), by and among AT&T Capital
Corporation, Newcourt Credit Group Inc., Newcourt Credit Group USA Inc., the
Banks party thereto, Xxxxxx Guaranty Trust Company of New York, as
Administrative Agent, Canadian Imperial Bank of Commerce, as Syndication Agent,
The Chase Manhattan Bank and Deutsche Bank AG, New York Branch, as
Co-Documentation Agents, and X.X. Xxxxxx Securities Inc. and CIBC Xxxxxxxxxxx
Corp., as Arrangers. Any capitalized term used herein and not defined herein
shall have the meaning assigned to it in the Credit Agreement.
1. GUARANTY. The CIT Group, Inc. (the "GUARANTOR") hereby (a)
unconditionally, absolutely and irrevocably guarantees to the Banks the full and
prompt payment by the Borrower of the obligations incurred by the Borrower to
the Banks pursuant to the Credit Agreement (including, without limitation,
interest accruing at the then applicable rate provided in the Credit Agreement
after the maturity of the Loans and interest accruing at the then applicable
rate provided in the Credit Agreement after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to any Obligor whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) (the "OBLIGATIONS") upon
written demand therefor from the Agent, and (b) agrees to pay all out-of-pocket
expenses incurred by the Agent and each Bank (including reasonable counsel fees
and expenses) in enforcing its rights under this Guaranty.
2. GUARANTOR'S OBLIGATIONS UNCONDITIONAL. (a) The Guarantor hereby
guarantees that the Obligations will be paid strictly in accordance with the
terms of the Credit Agreement, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of the Agent and each Bank with respect thereto. The
liability of the Guarantor hereunder shall be absolute and unconditional
irrespective of: (i) any lack of a validity or enforceability of any of the
Obligations, or any agreement, instrument or other document evidencing or
securing any of the Obligations; (ii) any change in the time, manner or place
of, payment of, or in any other term in respect of, all or any of the
Obligations, or any other amendment or waiver of, or consent to any departure
from any agreement, instrument or document evidencing or securing the
Obligations; or (iii) any other circumstance that might otherwise constitute a
defense available to, or a discharge of, the Borrower or any other guarantor in
respect of the Obligations.
(b) This Guaranty (i) is a continuing guarantee of payment and shall
remain in full force and effect until the satisfaction in full of the
Obligations, the payment of the other expenses to be paid by the Guarantor
pursuant hereto and the termination of the Commitments; and (ii) shall continue
to be effective or shall be reinstated, as the case may be, if at any time any
payment of any of the Obligations is rescinded or must otherwise be returned by
any Bank upon the insolvency, bankruptcy or reorganization of the Borrower or
otherwise, all as though such payment had not been made.
3. WAIVERS. The Guarantor hereby waives: (a) promptness and
diligence; (b) notice of acceptance and notice of the incurrence of any
Obligation by the Borrower; (c) notice of any actions taken by the Agent or any
Bank or the Borrower under the Credit Agreement or any other agreement or
instrument relating thereto, except as expressly provided for in clause (a) of
Section 1; (d) all other notices, demands and protests, and all other
formalities of every kind in connection with the enforcement of the Obligations
or of the obligations of the Guarantor hereunder, the omission of or delay in
which, but for the provisions of this Section 3, might constitute grounds for
relieving the Guarantor of its obligations hereunder, except as expressly
provided for in clause (a) of Section 1; and (e) any requirement that the Agent
or any Bank protect, secure, perfect or insure any security interest or lien or
any property subject thereto or exhaust any right or take any action against the
Borrower or any other person or entity or any collateral.
4. NO SUBROGATION. Notwithstanding any payment or payments made by
the Guarantor hereunder, or any set-off or application of funds of the Guarantor
by the Agent or any Bank, the Guarantor shall not be entitled to be subrogated
to any of the rights of the Agent or any Bank against any Obligor or against any
collateral security or guarantee or right of offset held by the Agent or any
Bank for the payment of the Obligations, nor shall the Guarantor seek or be
entitled to seek any contribution or reimbursement from any Obligor in respect
of payments made by the Guarantor hereunder, until all amounts owing to the
Agent and the Banks by the Obligors on account of the Obligations are paid in
full and the Commitments are terminated. If any amount shall be paid to the
Guarantor on account of such subrogation rights at any time when all of the
Obligations shall not have been paid in full, such amount shall be held by the
Guarantor in trust for the Agent and the Banks, segregated from other funds of
the Guarantor, and shall, forthwith upon receipt by the Guarantor, be turned
over to the Agent in the exact form received by the Guarantor (duly indorsed by
the Guarantor to the Agent, if required), to be applied against the Obligations,
whether matured or unmatured.
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5. REPRESENTATIONS AND WARRANTIES. To induce the Banks to enter into
the Second Amendment, the Guarantor hereby represents and warrants to the Agent
and each Bank that:
(a) FINANCIAL CONDITION. The consolidated balance sheet of the
Guarantor and its consolidated Subsidiaries as of December 31, 1998, and
the related consolidated statements of income and of cash flows for the
fiscal years ended on such dates, reported on by KPMG Peat Marwick, copies
of which have heretofore been furnished to each Bank, present fairly the
consolidated financial condition of the Guarantor and its consolidated
Subsidiaries as at such dates, and the consolidated results of their
operations and their consolidated cash flows for the fiscal year then
ended. All such financial statements, including the related schedules and
notes thereto, have been prepared in accordance with GAAP applied
consistently throughout the periods involved (except as approved by such
accountants and as disclosed therein).
(b) NO CHANGE. Since December 31, 1998 and until the date of this
Guaranty there has been no development or event which has had or could
reasonably be expected to have a Material Adverse Effect.
(c) CORPORATE EXISTENCE; COMPLIANCE WITH LAW; SIGNIFICANT
SUBSIDIARIES. Each of the Guarantor and its Significant Subsidiaries (i)
is duly organized, validly existing and in good standing under the laws of
the jurisdiction of its organization and (ii) has the power and authority
to conduct the business in which it is currently engaged.
(d) CORPORATE POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS. The
Guarantor has the corporate power and authority to make, deliver and
perform this Guaranty and has taken all necessary corporate action to
authorize the execution, delivery and performance of this Guaranty. No
consent or authorization of, filing with or other act by or in respect of,
any Governmental Authority or any other Person is required on the part of
the Guarantor in connection with the execution, delivery, performance,
validity or enforceability of this Guaranty. This Guaranty has been duly
executed and delivered on behalf of the Guarantor. This Guaranty
constitutes a legal, valid and binding obligation of the Guarantor
enforceable against the Guarantor in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
(e) NO LEGAL BAR. The execution, delivery and performance of this
Guaranty will not violate any Requirement of Law or material Contractual
Obligation of the Guarantor or of any of its Significant Subsidiaries and
will not result in, or require, the creation or imposition of any Lien on
any of its or their material respective properties or revenues pursuant to
any such Requirement of Law or Contractual Obligation.
(f) NO MATERIAL LITIGATION. (i) No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is
pending or, to the knowledge of the
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Guarantor, threatened by or against the Guarantor or any of its
Significant Subsidiaries or against any of its or their respective
properties or revenues with respect to this Guaranty or any of the
transactions contemplated hereby.
(ii) No litigation, investigation or proceeding of or
before any arbitrator or Governmental Authority is pending or, to
the knowledge of the Guarantor, threatened by or against the
Guarantor or any of its Significant Subsidiaries or against any of
its or their respective properties or revenues which could
reasonably be expected to result in a violation of subsection 6.3 of
the CIT Credit Agreement (as defined in Section 6 below), as
incorporated herein by reference pursuant to Section 6 below.
(g) NO DEFAULT. Neither the Guarantor nor any of its Significant
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect which could reasonably be expected to result in
a violation of subsection 6.3 of the CIT Credit Agreement, as incorporated
herein by reference pursuant to Section 6 below.
(h) AGGREGATION OF THE REPRESENTATIONS AND WARRANTIES RELATING TO
NET WORTH. The total effect of each event or circumstance referred to in
paragraph (f)(ii) and paragraph (g) of this Section 5 is not, when taken
together in the aggregate, reasonably expected to result in a violation of
subsection 6.3 of the CIT Credit Agreement, as incorporated herein by
reference pursuant to Section 6 below.
(i) INVESTMENT COMPANY ACT. The Guarantor is not an "investment
company", or a company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended.
(j) YEAR 2000 MATTERS. (i) The reprogramming and upgrading of the
Guarantor's computer systems required to permit these systems to function
properly in and following the Year 2000, and the testing of these systems
as so reprogrammed or upgraded, will be completed within a period of time
which could not reasonably be expected to result in a violation of
subsection 6.3 of the CIT Credit Agreement, as incorporated herein by
reference pursuant to Section 6 below, (ii) the cost to the Guarantor of
this reprogramming, upgrading and testing could not reasonably be expected
to result in a violation of subsection 6.3 of the CIT Credit Agreement, as
incorporated herein by reference pursuant to Section 6 below, and (iii)
the consequences to the Guarantor of failure of systems or equipment
supplied by others due to improper functioning in and following the year
2000 could not reasonably be expected to result in a violation of
subsection 6.3 of the CIT Credit Agreement, as incorporated herein by
reference pursuant to Section 6 below.
As used in this Section, capitalized terms that are not defined in
this Guaranty are used with the meanings ascribed to such terms in the CIT
Credit Agreement.
6. COVENANTS. The Guarantor agrees that, so long as any Bank has any
Commitment under the Credit Agreement or any amount payable under the Credit
Agreement or
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any Note remains unpaid, unless the Required Banks shall otherwise consent in
writing, the Guarantor will comply with each of the covenants contained in
Sections 5.1, 5.2, 5.3, 5.4(b), (c) and (d), 5.5, 5.6, 5.7 and Sections 6.1
through 6.3 of the Third Amended and Restated Credit Agreement dated as of April
24, 1999 (the "CIT CREDIT AGREEMENT"), by and among the Guarantor, as borrower,
the several banks and other financial institutions from time to time parties
thereto, The Dai-Ichi Kangyo Bank, Limited, as Documentation Agent, The First
National Bank of Chicago, as Documentation Agent, Union Bank of Switzerland, as
Documentation Agent, and The Chase Manhattan Bank, as Administrative Agent (as
in effect on the date hereof, without regard to any amendment, modification or
waiver of such provisions and without regard to whether or not the CIT Credit
Agreement remains in effect), which Sections (together with all related
definitions and ancillary provisions) are hereby incorporated by reference as
though set forth herein in their entirety; PROVIDED that (i) references to
"Bank" shall mean and be a reference to each Bank under the Credit Agreement,
(ii) references to "Administrative Agent" shall mean and be a reference to the
Agent, (iii) references to "this Agreement", "herein", "hereunder", and words of
similar import shall mean and be a reference to this Guaranty, (iv) references
to "Schedule" shall mean and be a reference to the applicable Schedule in the
CIT Credit Agreement (as in effect on the date hereof, without regard to any
amendment, modification or waiver of such provisions and without regard to
whether or not the CIT Credit Agreement remains in effect), and (v) references
to Sections in such incorporated Sections shall be references to Sections of the
CIT Credit Agreement, provided that to the extent such referenced Sections are
themselves incorporated in this Guaranty by reference, references herein to such
Sections shall be to such Sections as they are incorporated.
7. MISCELLANEOUS. (a) The Guarantor will make each payment hereunder
in lawful money of the United States and in immediately available funds to the
Agent at its address set forth above.
(b) No amendment of any provision of this Guaranty shall be
effective unless it is in writing and signed by the Guarantor and the Banks, and
no waiver of any provision of this Guaranty, and no consent to any departure by
the Guarantor therefrom, shall be effective unless it is in writing and signed
by the Banks, and then such waiver or consent shall be effective only in the
specific instance for the specific purpose for which given.
(c) No failure on the part of the Agent or any Bank to exercise, and
no delay in exercising any right hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any right preclude any other or
further exercise thereof or the exercise of any other right. The rights and
remedies of the Agent or any Bank provided herein are cumulative and are in
addition to, and not exclusive of, any rights or remedies provided by law. The
rights of the Agent or any Bank hereunder are not conditional or contingent on
any attempt by the Agent or any Bank to exercise any of its rights under any
other agreement evidencing or securing the Obligations against such party or
against any other person or entity.
(d) All communications provided for hereunder shall be in writing
(including telecopier communication) and shall be mailed, telecopied or
delivered, if to the Guarantor, to it at its address at 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: Senior Vice President and
Treasurer; and if to the Agent, to its address at c/o X.X. Xxxxxx & Co., 60
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Wall Street, Debt Xxxxxxx Xxxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000, Attention:
Xxxxxx Xxxxxxxxx; or, as to either such Person, at such other address as shall
be designated by such Person in a written notice to such other Person complying
as to delivery with the terms of this Section 5(d). All such notices and other
communications shall be effective (i) if mailed, the earlier of three days after
deposit in the mail or when received, (ii) if telecopied, when transmitted, and
(iii) if delivered, upon delivery.
(e) This Guaranty shall become effective as of the Reorganization
Effective Time
8. GOVERNING LAW. THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES UNDER THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
9. SUBMISSION TO JURISDICTION; WAIVERS. The Guarantor hereby
irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Guaranty, or for recognition and enforcement
of any judgment in respect thereof, to the non-exclusive general
jurisdiction of the courts of the State of New York, the courts of the
United States for the Southern District of New York, and appellate courts
from any thereof,
(ii) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not
to plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar for of mail), postage
prepaid, to the Guarantor at is address set forth in Section 7(d) above or
at such other address of which the Agent shall have been notified pursuant
thereto; and
(iv) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to xxx in any other jurisdiction.
10. WAIVERS OF JURY TRIAL. THE GUARANTOR (AND, BY ACCEPTANCE OF THE
BENEFITS HEREOF, THE AGENT AND THE BANKS) HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS GUARANTY
AND FOR ANY COUNTERCLAIM THEREIN.
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Very truly yours,
THE CIT GROUP, INC.
By /s/ Xxxxx X. Xxxxx
--------------------------------------
Name: XXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT
TREASURER
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