EXHIBIT 10.16
THE CIT GROUP, INC.
▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Dated as of June 1, 2001
Royal Bank of Canada, as Administrative Agent
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ Bank Plaza
Toronto, Ontario M5J 2J5
Re: UNCONDITIONAL GUARANTY
Ladies and Gentlemen:
Reference is hereby made to the $500,000,000 364-Day Credit
Agreement dated as of March 27, 2001 (as amended or otherwise modified from time
to time, the "CREDIT AGREEMENT"), by and among CIT Financial Ltd., the Banks
party thereto as lenders, Royal Bank of Canada, as Administrative Agent and
Canadian Imperial Bank of Commerce and The Chase Manhattan Bank of Canada, as
Syndication Agents. 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., a Nevada corporation (the
"GUARANTOR") hereby (a) unconditionally, absolutely and irrevocably guarantees
to the Banks the full and prompt payment by the Company of the obligations
incurred by the Company 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 Accommodations
Outstanding 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
the Company 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 Administrative Agent, and (b) agrees to pay all out-of-pocket expenses
incurred by the Administrative 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
-2-
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
Administrative 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 Company 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 later of (x) the satisfaction in full
of the Obligations and the payment of the other expenses to be paid by the
Guarantor pursuant hereto, and (y) 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
Company 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 Company; (c) notice of any actions taken by the Administrative
Agent or any Bank or the Company 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 Administrative 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 Company 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 Administrative Agent or any Bank, the Guarantor shall not be entitled to
be subrogated to any of the rights of the Administrative Agent or any Bank
against the Company or against any collateral security or guarantee or right of
offset held by the Administrative 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 the Company in respect of payments made by
the Guarantor hereunder, until the Commitments are terminated and all amounts
owing to the Administrative Agent and the Banks by the Company on account of the
Obligations are paid in full. If any amount shall be paid to the Guarantor on
account of such
-3-
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
Administrative Agent and the Banks, segregated from other funds of the
Guarantor, and shall, forthwith upon receipt by the Guarantor, be turned over to
the Administrative Agent in the exact form received by the Guarantor (duly
indorsed by the Guarantor to the Administrative Agent, if required), to be
applied against the Obligations, whether matured or unmatured.
5. REPRESENTATIONS AND WARRANTIES. To induce the Banks to enter into
the Credit Agreement, the Guarantor hereby represents and warrants to the
Administrative Agent and each Bank that:
(a) FINANCIAL CONDITION. The consolidated balance sheet of the
Guarantor and its consolidated Subsidiaries as of December 31, 2000, 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 or Responsible Officer and as
disclosed therein).
(b) NO CHANGE. Since December 31, 2000 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. As of the date hereof, each
Significant Subsidiary is listed on Schedule II to the CIT U.S. Credit
Agreement.
(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
-4-
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 material 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 Guarantor, threatened by or against the Guarantor or any
of its Significant Subsidiaries or against any of its or their respective
properties or revenues in any case that involves this Guaranty or the execution,
delivery and performance of this Guaranty.
(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 U.S. Credit Agreement, as incorporated herein by reference pursuant to
Section 6 below.
(g) NO DEFAULT. (i) 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 U.S. Credit Agreement, as incorporated
herein by reference pursuant to Section 6 below.
(ii) No Default or Event of Default (as such terms are defined
in the CIT U.S. Credit Agreement) has occurred and is continuing.
(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)(i) 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 U.S. Credit Agreement, as incorporated herein by
reference pursuant to Section 6 below.
(i) INVESTMENT COMPANY ACT. The Guarantor is not an "investment
company", within the meaning of the Investment Company Act of 1940, as amended.
(j) ERISA. Each Plan complies in all material respects with all
applicable provisions of ERISA and the Code, no Reportable Event has occurred
with respect to any Plan, neither the Company nor any other members of any
Commonly Controlled Entity has withdrawn from any Plan or initiated steps to do
so, and no steps have been taken to terminate any Plan, except in any case to
the extent that such failures could not, in the
-5-
aggregate, reasonably be expected to result in a violation of subsection 6.3 of
the CIT U.S. Credit Agreement, as incorporated herein by reference pursuant to
Section 6 below.
As used in this Section 5, capitalized terms that are not defined in
this Guaranty are used with the meanings ascribed to such terms in the CIT U.S.
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, unless the Required Banks shall otherwise consent in writing, the
Guarantor will comply with each of the covenants contained in Sections 5.1
through 5.8 and 6.1 through 6.3 of the CIT U.S. 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 U.S. 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
Administrative Agent under the Credit Agreement, (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 U.S. 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 U.S.
Credit Agreement remains in effect), and (v) references to Sections in such
incorporated Sections shall be references to Sections of the CIT U.S. 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 Canada and in immediately available funds to the
Administrative Agent at its address set forth above.
(b) Upon the delivery of an Extension Notice and upon the extension
of the Termination Date pursuant to the Credit Agreement, the Guarantor shall be
deemed to have represented and warranted on and as of the date of such Extension
Notice and the effective date of such extension, as the case may be, that (i) no
Default or Event of Default (as such terms are defined in the CIT U.S. Credit
Agreement) has occurred and is continuing, (ii) that the representations and
warranties of the Guarantor contained herein are true and correct in all
material respects on and as such date, except to the extent that such
representations and warranties expressly relate to an earlier date, and (iii)
since the date of the Guarantor's last audited financial statements and until
the date of such extension, there has been no development or event which has or
could reasonably be expected to have a Material Adverse Effect.
-6-
(c) No amendment of any provision of this Guaranty shall be
effective unless it is in writing and signed by the Guarantor and the Required
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 Required Banks, and then such waiver or consent shall be
effective only in the specific instance for the specific purpose for which
given; PROVIDED, HOWEVER, that no such amendment or waiver shall release the
Guarantor from its guaranty of the Obligations, amend Section 2, Section 7(b),
this Section 7(c) or Section 7(d), reduce any amount payable hereunder or extend
the time of payment of any amounts payable hereunder, in each case without the
written consent of all of the Banks.
(d) No failure on the part of the Administrative 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 Administrative 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 Administrative Agent or any Bank hereunder
are not conditional or contingent on any attempt by the Administrative 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.
(e) If for the purpose of obtaining judgment in any court in any
jurisdiction with respect to this Guaranty, it is necessary to convert into the
currency of such jurisdiction (the "JUDGMENT CURRENCY") any amount due hereunder
in any currency other than the Judgment Currency, then conversion shall be made
at the rate of exchange prevailing on the Business Day before the day on which
judgment is given. For this purpose "rate of exchange" means the rate at which
the Administrative Agent would, on the relevant date, sell a similar amount of
such currency in the Toronto foreign exchange market, against the Judgment
Currency, in accordance with normal and reasonable banking procedures.
In the event that there is a change in the rate of exchange
prevailing between the Business Day before the day on which the judgment is
given and the date of payment of the amount due, the Guarantor will, on the date
of payment, pay such additional amounts as may be necessary to ensure that the
amount paid on such date is the amount in the Judgment Currency which, when
converted at the rate of exchange prevailing on the date of payment, is the
amount then due under this Agreement in such other currency. In the event that
the amount so paid exceeds, when so converted, the amount then due, the
Administrative Agent shall remit to the Guarantor such excess. Any additional
amount due from the Guarantor or the Administrative Agent under this section
will be due as a separate debt and shall not be affected by judgment being
obtained for any other sums due under or in respect of this Agreement.
-7-
(f) 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 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: Treasurer; and if to the
Administrative Agent, to its address at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ Bank Plaza, Toronto, Ontario M5J 2J5, Attention: Manager Agency; 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 7(e). 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.
(g) This Guaranty shall become effective as of the date hereof and
replaces and supercedes the similar guaranty dated March 27, 2001, in relation
to the Credit Agreement addressed to you by the former CIT Group, Inc., which
Guaranty shall be released upon delivery of this Guaranty.
(h) This Guaranty shall enure to the benefit of the Banks and their
respective successors and assigns and shall be binding upon the Guarantor and
its successors and assigns.
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.
(a) 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 Province of Ontario, the courts of Canada, and appellate courts of
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; and
(iii) 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 ▇▇▇ in any other jurisdiction.
-8-
(b) The Guarantor 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 or similar form of mail), postage prepaid
to the Guarantor at its address set forth above or at such other address of
which the Administrative Agent shall have been notified pursuant thereto.
(c) The Guarantor irrevocably designates and appoints the corporate
secretary of the Company, having an office on the date hereof at Newcourt
Centre, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇, as the
Guarantor's authorized Administrative Agent, to accept and acknowledge on its
behalf service of any and all process which may be served in any suit, action or
proceeding referred to in Section 9. The Guarantor represents and warrants that
such Administrative Agent has agreed to accept such appointment. Said
designation and appointment shall not be revocable by the Guarantor until the
Guaranty has terminated. If such Administrative Agent shall cease to act as
Administrative Agent for the Guarantor, the Guarantor agrees to designate
irrevocably and appoint without delay another such Administrative Agent
satisfactory to the Administrative Agent.
(d) The Guarantor consents to process being served in any suit,
action or proceeding referred to in Section 9(c) by service of process upon its
Administrative Agent appointed as provided in Section 9(c).
10. WAIVERS OF JURY TRIAL. THE GUARANTOR (AND, BY ACCEPTANCE OF THE
BENEFITS HEREOF, THE ADMINISTRATIVE 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.
11. INTEREST ACT (CANADA). For purposes of the Interest Act
(Canada), (i) whenever any interest applicable to this Guaranty is calculated
using a rate based on a year of 360 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 (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 (ii) the principle of
deemed reinvestment of interest does not apply to any interest calculation in
respect of this Guaranty; and (iii) the rates of interest stipulated in respect
of this Guaranty are intended to be nominal rates and not effective rates or
yields.
12. TAXES AND OTHER TAXES.
(a) Any and all payments to the Banks by the Guarantor hereunder
shall be made free and clear of and without deduction or withholding for any and
all present or future taxes, levies, imposts, deductions, charges or
withholdings, and liabilities with respect thereto, excluding, in the case of
each Bank, taxes imposed on its net income and all
-9-
capital, franchise and other business-related taxes imposed by any jurisdiction
under any law to which such Bank is subject or by the United States (or any
political subdivision or taxing authority thereof or therein) (all such
non-excluded taxes, levies, imposts, deductions, charges, 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 or the administration thereof to deduct or
withhold any such Taxes from or in respect of any sum payable hereunder and,
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 deductions or withholdings applicable to additional
amounts paid under this paragraph), the applicable Banks receive an amount equal
to the sum they would have received if no such deduction or withholding had been
made; (ii) the Guarantor shall make such deductions or withholdings; and (iii)
the Guarantor forthwith shall pay the full amount deducted or withheld to the
relevant taxation or other authority in accordance with applicable law.
(b) The Guarantor agrees to pay forthwith 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 herein referred to as
"Other Taxes") imposed by any jurisdiction (or any political subdivision or
taxing authority thereof or therein) which arise from any payment made by the
Guarantor hereunder or from the execution, delivery or registration of, or
otherwise with respect to, this Guaranty.
(c) The Guarantor agrees to indemnify the Banks for the full amount
of Taxes or Other Taxes not deducted or withheld and paid by it in accordance
with Section 12(a) and Section 12(b) to the relevant taxation or other authority
and any Taxes or Other Taxes imposed by any jurisdiction on amounts payable by
it under this Section 12, paid by the applicable Banks and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto, whether or not any such Taxes or Other Taxes were correctly or legally
asserted. Payment under this indemnification shall be made within 30 days from
the date the Administrative Agent or the relevant Banks make written demand
therefor. A certificate as to the amount of such Taxes or Other Taxes and
evidence of payment thereof submitted to the Guarantor by the Administrative
Agent shall be PRIMA FACIE evidence of the amount due from the Guarantor to the
Administrative Agent or the applicable Banks.
(d) The Guarantor shall furnish to the Administrative Agent and the
applicable Banks the original or a certified copy of a receipt evidencing any
payment of Taxes or Other Taxes made by the Guarantor as soon as such receipt
becomes available.
(e) Any Bank claiming any additional amounts payable under this
Section 12 shall, to the extent legally able to do so, upon reasonable written
request from the Guarantor, file any certificate or document if such filing
would avoid the need for or reduce the amount of any such additional amounts
which may thereafter accrue, and the
-10-
Guarantor shall not be obligated to pay such additional amounts if, after the
Guarantor's request, any Bank could have filed such certificate or document and
failed to do so.
(f) The provisions of this Section 12 shall survive the termination
of this Guaranty.
Very truly yours,
THE CIT GROUP, INC.
By:_________________________
Name:
Title: