[Exhibit 1.3]
SELLING AGENT AGREEMENT
by and among
CIT Group Inc.
and the
Agents named herein
________, 2004
_________, 2004
To the Agents listed on
the signature page hereto.
CIT Group Inc., a Delaware corporation (the "Company"), proposes to
issue and sell up to $[___] aggregate principal amount of its InterNotes'r' due
nine months or more from date of issue (the "Notes"). The Notes are to be issued
pursuant to an indenture, dated as of _______, 2004 (the "Indenture") between
the Company and ▇.▇. ▇▇▇▇▇▇ Trust Company, National Association, as trustee (the
"Trustee"). The terms of the Notes are described in the Prospectus referred to
below.
Subject to the terms and conditions contained in this Agreement, the
Company hereby (1) appoints each of you as agent ("Agent") of the Company for
the purpose of soliciting offers to purchase Notes and each of you hereby agree
to use your reasonable best efforts, as agents for the Company, to solicit
offers to purchase Notes upon terms acceptable to the Company at such times and
in such amounts as the Company shall from time to time specify and in accordance
with the terms hereof, and after consultation with Incapital LLC (the
"Purchasing Agent") and (2) agrees that whenever the Company determines to sell
Notes to you pursuant to this Agreement, such Notes shall be sold pursuant to a
Terms Agreement (as defined herein) relating to such sale in accordance with the
provisions of Section V hereof between the Company and the Purchasing Agent,
with the Purchasing Agent purchasing such Notes as principal for resale to other
Agents or dealers (the "Selected Dealers"), each of whom will purchase as
principal. The Company reserves the right to enter into agreements substantially
similar hereto with other agents.
I.
The Company has filed with the Securities and Exchange Commission (the
"SEC") a registration statement No. 333-119172 that included a base prospectus,
which sets forth the general terms of the Notes (the "Base Prospectus"). Under
the registration statement, the Notes may be offered thereof, from time to time,
in accordance with Rule 415 under the Securities Act of 1933, as amended (the
"1933 Act"). The registration statement has been declared effective by the SEC
(the registration statement, in the form declared effective by the SEC,
hereinafter referred to as the "Registration Statement"), and the Indenture has
been qualified under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"). The Base Prospectus, dated as of October 28, 2004, included as
part of the Registration Statement, and the prospectus supplement, dated as of
the date hereof, relating to the Notes, filed with the SEC pursuant to Rule 424
under the 1933 Act, including all documents incorporated therein by reference,
as from time to time amended or supplemented, including any Pricing Supplement
(as defined herein), are referred to herein as the "Prospectus."
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InterNotes'r' is a registered servicemark of Incapital Holdings LLC
II.
The Agents' obligations hereunder are subject to the following
conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for that
purpose shall have been instituted or, to the knowledge of the Company, shall be
contemplated by the SEC.
(b) Such Agents shall have received an opinion or opinions, dated as of the
date hereof, of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, the form of
which is attached hereto as Exhibit F, and of Shearman & Sterling LLP, or other
counsel of the Company reasonably satisfactory to such Agent, the form of which
is attached hereto as Exhibit G.
(c) On the date hereof, the Agents shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ LLP, counsel for the Agents, such opinion or opinions,
dated as of the date hereof, with respect to the Indenture, the Registration
Statement, the Prospectus and other related matters as they may require and the
Company shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(d) On the date hereof, the Agents shall have received a certificate, dated
as of the date hereof, of the principal financial or accounting officer of the
Company in which such officer shall state to the best of his knowledge after
reasonable investigation, (i) that the representations and warranties of the
Company in this Agreement are true and correct as of the date hereof, (ii) that
the Company has complied with all agreements and satisfied all conditions to the
obligation of such Agent to solicit offers to purchase the Notes as set forth in
this Agreement, (iii) that no stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and, to the best of
his knowledge, no proceedings for that purpose have been instituted or are
contemplated by the SEC, (iv) that, subsequent to the date of the most recent
financial statements included or incorporated by reference in the Prospectus,
there has been no material adverse change, or any development involving a
prospective material adverse change, in or affecting the business, properties,
financial condition or results of operations of the Company or its subsidiaries,
except as set forth in or contemplated by the Prospectus, and (v) that such
officer has reviewed each agreement or instrument to which the Company is a
party or by which it is bound which contains any covenant or restriction which
limits or restricts the Company's freedom to incur indebtedness, that the
issuance and sale by the Company of the Notes would not result in a breach of,
or constitute a default under, the provisions of any of such agreements or
instruments and that, with respect to any Notes in respect of which such
covenants or restrictions apply, attached thereto are calculations demonstrating
that, based upon the Company's latest available financial statements, the
issuance and sale of such Notes would not result in a breach of, or constitute a
default under, the provisions of any of such agreements or instruments, and also
attached thereto is a letter of the Company's independent registered public
accounting firm, reporting on their review of such calculations.
(e) On the date hereof, the Agents shall have received a letter, dated as
of the date hereof, of the Company's independent registered public accounting
firm confirming that it is an independent registered public accounting firm
within the meaning of the 1933 Act and the published Rules and Regulations and
to the effect that (i) in their opinion, the financial
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statements and financial schedules audited by them and included in or
incorporated by reference into the Registration Statement and the Prospectus
comply in form in all material respects with the applicable accounting
requirements of the 1933 Act, the Securities Exchange Act of 1934, as amended
(the "1934 Act") and the related published rules and regulations of the SEC
promulgated pursuant to the 1933 Act and the 1934 Act (together with the rules
and regulations promulgated pursuant to the Trust Indenture Act, the "Rules and
Regulations"), (ii) on the basis of their review (which does not constitute an
examination of financial statements in accordance with procedures specified by
the Public Company Accounting Oversight Board (United States) (the "PCAOB")) of
the financial statements referred to below, inquiries of officials of the
Company responsible for financial and accounting matters and other specified
procedures, nothing came to their attention that caused them to believe that (w)
any unaudited consolidated condensed financial statements included in or
incorporated by reference into the Registration Statement and the Prospectus do
not comply in form in all material respects with the applicable accounting
requirements of the 1934 Act as it applies to Forms 10-Q or 8-K and the related
published Rules and Regulations or are not in conformity with generally accepted
accounting principles applied on a basis substantially consistent with that of
the audited consolidated financial statements included in or incorporated by
reference into the Registration Statement and the Prospectus, or (x) with
respect to the period after the date of the most recent financial statements
included in or incorporated by reference into the Registration Statement and the
Prospectus, there was any change, when compared to the most recent internal
balance sheet, in the capital stock or increase in total debt of the Company or
any decrease in the consolidated total assets, total shareholder's equity,
finance receivables or reserve for credit losses on finance receivables of the
Company as compared with the amounts shown on the most recent consolidated
balance sheet included in or incorporated by reference into the Registration
Statement and the Prospectus, or (y) with respect to the period after the date
of the most recent financial statements included in or incorporated by reference
into the Registration Statement and the Prospectus and subsequent to the most
recent internal balance sheet through a specified date not more than five
business days prior to the date of the letter there was any change in the
capital stock or increase in total debt of the Company or any decrease in the
consolidated total assets, total shareholder's equity, finance receivables or
reserve for credit losses of the Company as compared with the amounts shown on
the most recent consolidated balance sheet included in or incorporated by
reference into the Registration Statement and the Prospectus (if the Company is
unable to quantify any such decrease, a statement to that effect will be
included in the letter), or (z) for the period from the date of the most recent
financial statements included in or incorporated by reference into the
Registration Statement and the Prospectus to such specified date not more than
five business days prior to the date of the letter there were any quantifiable
decreases, as compared with the corresponding period in the preceding year, in
consolidated net finance income or net income of the Company (if the Company is
unable to quantify any such decrease, a statement to that effect will be
included in the letter), except in all instances for changes or decreases which
the Prospectus disclosed have occurred or may occur or which are described in
such letter and (iii) they have compared specific dollar amounts (or percentages
derived from such dollar amounts) and other financial information included in or
incorporated by reference into the Prospectus (in each case to the extent that
such dollar amounts or percentages or other financial information are derived
from the general accounting records of the Company and consolidated subsidiaries
which are subject to the internal controls of the accounting systems of the
Company and consolidated subsidiaries or are derived directly from such records
by
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analysis or computation, and are not directly traceable to the publicly
available audited consolidated financial statements of the Company or unaudited
condensed financial statements contained in its reports of Forms 10-Q or 8-K)
with the results obtained from inquiries, a reading of such general accounting
records of the Company and consolidated subsidiaries and other procedures
specified in such letter and have found such dollar amounts and percentages and
other financial information to be in agreement with such results, except as
otherwise specified in such letter.
(f) On the date hereof, the Agents shall have received from Shearman &
Sterling LLP, counsel for the Company, an opinion or opinions to the effect
that, as of the date hereof, the description of United States Federal income tax
consequences set forth under "Material U.S. Federal Income Tax Considerations"
in the Prospectus Supplement is accurate in all material respects.
(g) On the date hereof and on each Settlement Date (defined below) with
respect to any purchase of Notes by the Purchasing Agent, purchasing such Notes
as principal, counsel to the Agents shall have been furnished with such
documents and opinions as such counsel may reasonably require for the purpose of
enabling such counsel to pass upon the issuance and sale of Notes as herein
contemplated, or in order to evidence the accuracy and completeness of any of
the representations and warranties, or the fulfillment of any of the conditions,
contained herein; and all proceedings taken by the Company in connection with
the issuance and sale of Notes as herein contemplated shall be satisfactory in
form and substance to the Purchasing Agent and to counsel to the Agents.
The obligations of the Agents to purchase Notes as principal, both
under this Agreement and under any Terms Agreement, will be subject to the
following further conditions: (i) no litigation or proceeding shall be
threatened or pending to restrain or enjoin the issuance or delivery of the
Notes, or which in any way questions or affects the validity of the Notes, (ii)
no public announcement shall have been given of any intended or potential
downgrading or withdrawal in the credit rating accorded any of the Company's
debt securities, or no credit rating of any debt securities of the Company shall
have been lowered or withdrawn, and no such nationally recognized statistical
rating organization shall have publicly announced that it has under surveillance
or review, with possible negative implications, its credit ratings of any debt
securities of the Company since that date; (iii) there shall not have come to
the attention of the Agent any facts that would cause such Agent to believe that
the Prospectus, at the time it was required to be delivered to a purchaser of
the Notes, contained an untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements therein, in light of
the circumstances existing at such time, not misleading; and (iv) there shall
have been no material adverse change in the consolidated financial condition of
the Company and its subsidiaries, taken individually or as a whole, from that
set forth in the Registration Statement and the Prospectus, each of which
conditions shall be met on the corresponding Settlement Date.
If any condition specified in this Section II shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
applicable Agent or Agents by notice to the Company at any time and any such
termination shall be without liability of any party to any other party, except
that the covenant regarding provision of an earnings statement set forth in
Section III(c) hereof, the indemnity and contribution agreements set forth in
Section
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VIII hereof, the provisions concerning payment of expenses under Section XIII
hereof, the provisions concerning the representations, warranties and agreements
to survive delivery of Section IX hereof, the provisions relating to governing
law and forum set forth in Section XII and the provisions relating to parties
set forth in Section XI hereof shall remain in effect.
III.
In further consideration of the Agents' agreements herein contained,
the Company covenants and agrees with the Agents as follows:
(a) The Company will advise counsel for the Agents promptly of any proposal
to amend or supplement the Registration Statement or the Prospectus or to
prepare any additional registration statement with respect to the registration
of additional Notes, and in any case prior to the termination of the offering of
the Notes pursuant to this Agreement, will provide each Agent with a reasonable
opportunity to comment thereon and will advise the Agents promptly of the
institution by the SEC of any stop order proceedings in respect of the
Registration Statement or of any part thereof or the additional registration
statement and will use its best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible its lifting, if issued. The Company will
promptly advise counsel for the Agents (i) when each supplement to the
Prospectus shall have been filed with the SEC pursuant to Rule 424(b), (ii) when
any amendment of the Registration Statement or additional registration statement
shall have become effective, (iii) of any request by the SEC for any amendment
of the Registration Statement or amendment of or supplement to the Prospectus or
for any additional information, and (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Notes
for sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose.
(b) If, at any time when a Prospectus relating to the Notes is required to
be delivered under the 1933 Act, any event occurs as a result of which, the
Prospectus as then amended or supplemented would include an untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend or supplement
the Registration Statement or the Prospectus to comply with the 1933 Act
immediate notice shall be given, and confirmed in writing, to the Agents to
cease the offer and sale of any Notes, and the Company promptly will prepare and
file with the SEC an amendment or supplement which will correct such untrue
statement or omission or an amendment which will effect such compliance.
(c) The Company shall make generally available to its securityholders
earning statements (which need not be audited) satisfying the provisions of
Section 11(a) of the 1933 Act and Rule 158 thereunder (or any similar rule
promulgated under the ▇▇▇▇ ▇▇▇) no later than 45 days after the close of each of
the first three fiscal quarters of each fiscal year of the Company and 90 days
after the close of each fiscal year of the Company, or such shorter period as
required under the 1933 Act and the 1934 Act and the rules and regulations
thereunder, as in effect at any relevant time, commencing on the first day of
the first fiscal quarter of the Company commencing after (i) the effective date
of the Registration Statement, (ii) the effective date of each post-effective
amendment to such Registration Statement, or (iii) the date of each filing by
the Company with the SEC of an Annual Report on Form 10-K that is incorporated
by reference in such Registration Statement, which statements shall cover said
periods.
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(d) The Company will furnish each Agent with copies of the Registration
Statement, and, to the extent requested by such Agent, all exhibits, the
Prospectus and all amendments and supplements to such documents, including
documents incorporated by reference therein, in each case as soon as available
and in such quantities as are reasonably requested and so long as an Agent is
required to deliver a Prospectus in connection with sales or solicitation of
offers to purchase the Notes.
(e) The Company will use its best efforts, in cooperation with the Agents,
to qualify the Notes for sale under the applicable laws of such jurisdictions as
the Agents may reasonably request and will continue such qualifications in
effect so long as required for the sale of the Notes hereunder; provided,
however, that the Company shall not be obligated to qualify as a foreign
corporation or as a dealer in securities or to execute or file any consents to
service of process under the laws of any such state. Counsel for the Agents
shall provide or cause to be provided to the Agents, annually, a "blue sky"
memorandum relating to its debt securities of the Company registered under the
Registration Statement.
(f) Each time the Registration Statement or the Prospectus is amended or
supplemented, including by the filing with the SEC of any document incorporated
by reference into the Prospectus (other than by an amendment or supplement (i)
relating to an offering of securities other than the Notes, (ii) providing for a
reduction of the aggregate amount of Notes being offered, (iii) consisting of
additional exhibits to the Registration Statement filed in a Current Report on
Form 8-K or a Post-Effective Amendment to the Registration Statement filed
pursuant to Rule 462(d) under the 1933 Act, (iv) providing solely for the
specification of the terms of the Notes (excluding any change in the formula by
which interest rates on the Notes may be determined) or (v) occurring due to
incorporation by reference of a Form 8-K of the Company with respect to
non-financial information or an earnings release) the Company, upon the request
of an Agent, will deliver or cause to be delivered forthwith to such Agent a
certificate of the Company signed by the principal financial or accounting
officer of the Company, dated the date of the effectiveness of such amendment or
the date of filing of such supplement (or document incorporated by reference),
in form reasonably satisfactory to such Agent, to the effect that the statements
contained in the certificate referred to in Section II(d) hereof that was last
furnished to the Agents (either pursuant to Section II(d) hereof or pursuant to
this Section III(f)) are true and correct at the time of the effectiveness of
such amendment or the filing of such supplement (or document incorporated by
reference) as though made at and as of such time (except that (i) the last day
of the fiscal quarter for which financial statements of the Company were last
filed with the SEC shall be substituted for the corresponding date in such
certificate and (ii) such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of the effectiveness of such amendment or the filing of such supplement (or
document incorporated by reference)) or, in lieu of such certificate, a
certificate substantially in the form of the certificate referred to in Section
II(d) hereof but modified to relate to the last day of the fiscal quarter for
which financial statements of the Company were last filed with the SEC and to
the Registration Statement and the Prospectus as amended and supplemented to the
time of the effectiveness of such amendment or the filing of such supplement (or
document incorporated by reference); provided, however, that such certificate
need not be furnished with respect to an amendment or supplement (or document
incorporated by reference) deemed immaterial in the reasonable opinion of such
Agent.
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(g) Each time the Registration Statement or the Prospectus is amended or
supplemented, including by the filing with the SEC of any document incorporated
by reference into the Prospectus, the Company, upon the request of an Agent,
shall furnish or cause to be furnished forthwith to such Agent the written
opinion or opinions of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, and/or
Shearman & Sterling LLP, or other counsel of the Company reasonably satisfactory
to such Agent; provided, however, that such opinions need not be furnished with
respect to an amendment or supplement (or document incorporated by reference)
(i) relating to an offering of securities other than the Notes, (ii) providing
for a reduction of the aggregate amount of Notes being offered, (iii) consisting
of additional exhibits to the Registration Statement filed in a Current Report
on Form 8-K or a Post-Effective Amendment to the Registration Statement filed
pursuant to Rule 462(d) under the 1933 Act, (iv) providing solely for the
specification of the terms of the Notes (excluding any change in the formula by
which interest rates on the Notes may be determined), or (v) occurring due to
incorporation by reference of a Form 8-K of the Company with respect to
non-financial information or an earnings release. Any such opinion shall be
dated the date of the effectiveness of such amendment or the date of filing of
such supplement (or document incorporated by reference), in form satisfactory to
the Agents, and shall be substantially in the form delivered pursuant to Section
II(b) hereof but modified to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of the effectiveness of such
amendment or the filing of such supplement (or document incorporated by
reference); provided, however, that such opinion need not be furnished with
respect to an amendment or supplement (or document incorporated by reference)
deemed immaterial in the reasonable opinion of such Agent. In lieu of such
opinion, counsel last furnishing such an opinion to the Agents may furnish to
the Agents a letter to the effect that the Agents may rely on such last opinion
to the same extent as though it were dated the date of such letter authorizing
reliance on such last opinion (except that statements in such last opinion will
be deemed to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of the effectiveness of such amendment or the
filing of such supplement (or document incorporated by reference therein)).
(h) Each time that the Registration Statement or the Prospectus is amended
or supplemented to set forth amended or supplemental financial information or
such amended or supplemental information is incorporated by reference into the
Registration Statement or the Prospectus (other than by an amendment or
supplement occurring due to incorporation by reference of a Form 8-K of the
Company with respect to an earnings release), the Company shall, upon the
request of an Agent, unless a letter is otherwise furnished pursuant to Section
VII(d) hereof, cause its independent registered public accounting firm,
forthwith to furnish such Agent a letter, dated the date of the effectiveness of
such amendment or the date of filing of such supplement, in form satisfactory to
such Agent, substantially in the form of the letter referred to in Section II(e)
hereof with such changes as may be necessary to reflect the amended and
supplemental financial information included in or incorporated by reference into
the Registration Statement and the Prospectus, as amended or supplemented to the
date of such letter.
(i) Each acceptance by the Company of an offer to purchase Notes will be
deemed to be a representation and warranty to the Agents that neither the
Registration Statement, as then amended, does not contain an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary in order the make the statements therein not misleading, nor does
the Prospectus, as then amended or supplemented, include any untrue
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statement of a material fact, or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(j) The Company, during the period when the Prospectus is required to be
delivered under the 1933 Act, will file promptly all documents required to be
filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934
Act.
(k) The Company shall not be required to comply with the provisions of
subsections (a) or (b) of this Section during any period from the time no Agent
shall then hold any Notes purchased as principal pursuant hereto, until the time
the Company shall determine that an Agent shall subsequently purchase Notes from
the Company as principal.
(l) The Company will prepare, with respect to any Notes to be sold through
or to the Agents pursuant to this Agreement, a pricing supplement (a "Pricing
Supplement") with respect to such Notes in a form previously approved by the
Agents and will file such Pricing Supplement pursuant to Rule 424(b) under the
1933 Act.
(m) The Company, in relation to any Notes that are to be listed on a stock
exchange as may be agreed between the Company and the relevant Agent(s), will
use its best efforts to arrange the admission to listing of such Notes on such
stock exchange and to maintain such listing until the relevant Notes are no
longer outstanding; provided that if it should become impracticable or unduly
burdensome to maintain any such listing, the Company will use its best efforts
to arrange and maintain such listing for the relevant Notes on such other stock
exchange as it and the relevant Agent(s) may agree.
(n) If requested by an Agent in connection with a purchase by it of Notes
as principal in accordance with Section IV(a) hereof, such transaction shall be
subject to the terms of any stand-off provision as may be agreed by the Company
and the applicable Agent at the time of such agreement to purchase Notes as
principal.
IV.
(a) If Notes are purchased by any Agent pursuant to the terms of this
Agreement and as contemplated by clause (2) in the second full paragraph of this
Agreement, such Notes shall be purchased by each Agent as principal. The Agents
shall offer the Notes purchased by them upon the terms and conditions set forth
herein and in the Prospectus and upon the terms communicated to the Agents from
time to time by the Company or the Purchasing Agent, as the case may be (which
terms, unless otherwise agreed, may be agreed upon orally, with written
confirmation prepared by such Agent or Agents and sent by telecopier to the
Company). For the purpose of such sales, the Agents will use the Prospectus as
then amended or supplemented which has been most recently distributed to the
Agents by the Company, and the Agents will offer and sell the Notes only as
permitted or contemplated thereby and herein and will offer and sell the Notes
only as permitted by the 1933 Act and the applicable securities laws or
regulations of any jurisdiction. An Agent's commitment to purchase Notes as
principal shall be deemed to have been made on the basis of the representations
and warranties of the Company herein contained and shall be subject to the terms
and conditions herein set forth. Unless the context
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otherwise requires, references herein to "this Agreement" shall include the
agreement of one or more Agents to purchase Notes from the Company as principal.
The Company agrees to sell the Notes to the Purchasing Agent at a
discount equal to the percentages of the initial offering price of each Note
actually sold as set forth in Exhibit A hereto; provided, however, that the
Company and the Purchasing Agent may agree instead to a discount greater than or
less than the percentages set forth on Exhibit A hereto. The actual aggregate
discount with respect to each sale of Notes will be set forth in the related
Pricing Supplement. The Purchasing Agent and the other Agents or Selected
Dealers will share the above-mentioned discount in such proportions as they may
agree.
(b) Procedural details relating to the issue and delivery of, and the
solicitation of purchases and payment for, the Notes are set forth in the
Administrative Procedures attached hereto as Exhibit B (the "Procedures"), as
amended from time to time. Unless otherwise provided in a Terms Agreement, the
provisions of the Procedures shall apply to all transactions contemplated
hereunder. The Agents and the Company each agree to perform the respective
duties and obligations specifically provided to be performed by each in the
Procedures as amended from time to time. The Procedures may only be amended by
written agreement of the Company and the Agents.
V.
Each sale of Notes to you shall be made in accordance with the terms
of this Agreement, the Procedures and a separate agreement in substantially the
form attached as Exhibit C (a "Terms Agreement") to be entered into which will
provide for the sale of such Notes to, and the purchase and reoffering thereof,
by the Purchasing Agent as principal. A Terms Agreement may also specify certain
provisions relating to the reoffering of such Notes by the Purchasing Agent. The
offering of Notes by the Company hereunder and the Purchasing Agent's agreement
to purchase Notes pursuant to any Terms Agreement shall be deemed to have been
made on the basis of the representations, warranties and agreements of the
Company herein contained and shall be subject to the terms and conditions herein
set forth. Each Terms Agreement shall describe the Notes to be purchased
pursuant thereto by the Purchasing Agent as principal, and may specify, among
other things, the principal amount of Notes to be purchased, the interest rate
or interest rate basis (and whether such interest rate shall be fixed or
floating) and maturity date or dates of such Notes, the interest payment dates,
if any, the net proceeds to the Company, the initial public offering price at
which the Notes are proposed to be reoffered, and the time, date (the
"Settlement Date") and place of delivery of and payment for such Notes, whether
the Notes provide for a Survivor's Option (as such term is defined in the
Prospectus), whether the Notes are redeemable or repayable and on what terms and
conditions, and any other relevant terms. In connection with the resale of the
Notes purchased, without the consent of the Company, the Agents are not
authorized to appoint subagents or to engage the service of any other broker or
dealer, nor may any Agent reallow any portion of the discount paid to it.
VI.
(a) The Company represents and warrants to the Agents as of the date
hereof, as of the date of each acceptance by the Company of an offer for the
purchase of Notes (including any
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purchase by the Purchasing Agent as principal, pursuant to a Terms Agreement or
otherwise), as of each Settlement Date, and as of any time that the Registration
Statement or the Prospectus shall be amended or supplemented or there is filed
with the SEC any document incorporated by reference into the Prospectus (other
than any Current Report on Form 8-K relating exclusively to the issuance of debt
securities under the Registration Statement) (each of the times referenced above
being referred to herein as a "Representation Date") as follows:
(i) The Registration Statement and the Prospectus, at the time
the Registration Statement became effective, complied, and as of the
applicable Representation Date complies, in all material respects with
the requirements of the 1933 Act, the Trust Indenture Act, the 1934
Act and the applicable Rules and Regulations. The Registration
Statement, at the time the Registration Statement became effective and
on the date of the signing of this Agreement, did not, and as of the
applicable Representation Date does not, contain any untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading. The Prospectus, at the time the Registration Statement
became effective did not, and as of the applicable Representation Date
does not, contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished in writing
to the Company by any of the Agents expressly for use in the
Registration Statement or Prospectus or to that part of the
Registration Statement which shall constitute the Statements of
Eligibility under the Trust Indenture Act (Form T-1) of the Trustee
under the Indenture. After a post-effective amendment to the
Registration Statement is filed and has become effective under the
1933 Act, the representations and warranties contained in this
subsection shall refer to the Registration Statement as so amended. On
or prior to the date hereof, the Prospectus relating to the Notes has
been filed, pursuant to Rule 424(b) under the 1933 Act.
(ii) The documents incorporated by reference in the Prospectus,
when they were filed with the SEC, conformed in all material respects
to the requirements of the 1934 Act and the Rules and Regulations
thereunder, as applicable, and none of such documents contained an
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; and any further documents so filed and
incorporated by reference in the Prospectus, when such documents are
filed with the SEC, will conform in all material respects to the
applicable requirements of the 1934 Act and the Rules and Regulations
thereunder and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
10
(b) Any certificate signed by any director or officer of the Company and
delivered to the Purchasing Agent or to counsel for the Purchasing Agent in
connection with an offering of Notes or the sale of Notes to the Purchasing
Agent as principal shall be deemed a representation and warranty by the Company
to the Agents as to the matters covered thereby on the date of such certificate
and at each Representation Date subsequent thereto.
(c) All representations, warranties, covenants and agreements of the
Company contained in this Agreement or in certificates of officers of the
Company submitted pursuant hereto shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of any Agent or any
controlling person of any Agent, or by or on behalf of the Company, and shall
survive each delivery of and payment for any of the Notes.
VII.
The Company covenants and agrees with the Agents that:
(a) Each acceptance by the Company of an offer for the purchase of Notes
and each delivery of Notes, shall be deemed to be an affirmation that the
representations and warranties of the Company contained in this Agreement are
true and correct at the time of such acceptance or sale, as the case may be, and
an undertaking that such representations and warranties will be true and correct
at the time of delivery to such Agent or Agents or to the purchaser or its
agent, as the case may be, of the Note or Notes relating to such acceptance or
sale, as the case may be, as though made at and as of each such time (and it is
understood that such representations and warranties shall relate, as applicable,
to the Registration Statement and Prospectus as amended and supplemented to each
such time).
(b) Each time that there is filed with the SEC any Quarterly Report on Form
10-Q or Annual Report on Form 10-K incorporated by reference into the
Prospectus, and otherwise only (i) as may be required in connection with a sale
pursuant to Section IV(a) or (ii) at such times as may be reasonably requested
by the Agents in the event of a material change in circumstances in respect of
the Company, the Company shall furnish or cause to be furnished to the Agent(s)
forthwith a certificate dated the date of filing with the SEC of such document,
the date requested by the Agents or the date of such sale, as the case may be,
in form reasonably satisfactory to the Agent(s) to the effect that the
statements contained in the certificate referred to in Section II(d) hereof
which were last furnished to the Agents are true and correct at the time of such
filing, as though made at and as of such time (except that such statements shall
be deemed to relate to the Registration Statement and the Prospectus as amended
and supplemented to such time) or, in lieu of such certificate, a certificate
substantially similar to the certificate referred to in Section II(d) hereof,
modified as necessary to relate to the Registration Statement and the Prospectus
as amended and supplemented to the time of delivery of such certificate.
(c) Each time that there is filed with the SEC any Quarterly Report on Form
10-Q or Annual Report on Form 10-K incorporated by reference into the
Prospectus, and otherwise only (i) as may be required in connection with a sale
pursuant to Section IV(a) or (ii) at such times as may be reasonably requested
by the Agents in the event of a material change in circumstances in respect of
the Company, the Company shall furnish or cause to be furnished forthwith, and
in any case promptly upon request, to the Agent(s) and to counsel to the Agents
the written opinion
11
of counsel to the Company referred to in Section II(b), or other counsel
reasonably satisfactory to the Agent(s), dated the date of filing with the SEC
of such document, the date requested by the Agent(s) or the date of such sale,
as the case may be, in the forms delivered pursuant to Section II(b) hereof,
including such reductions or limitations as shall be reasonably satisfactory to
the Agent(s), but modified, as necessary, to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of delivery
of such opinion or, in lieu of such opinion, counsel last furnishing such
opinion to the Agents shall furnish the Agent(s) with a letter substantially to
the effect that the Agent(s) may rely on such last opinion to the same extent as
though it were dated the date of such letter authorizing reliance (except that
statements in such last opinion shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of delivery
of such letter authorizing reliance).
(d) Each time that there is filed with the SEC any Quarterly Report on Form
10-Q or Annual Report on Form 10-K incorporated by reference into the
Prospectus, and otherwise only (i) as may be required in connection with a sale
pursuant to Section IV(a) or (ii) at such times as may be reasonably requested
by the Agents in the event of a material change in circumstances in respect of
the Company, the Company shall cause its independent registered public
accounting firm to furnish such Agents a letter, dated the date of the filing of
such document with the SEC, the date of such request or the date of such sale,
as the case may be in form reasonably satisfactory to the Agent(s),
substantially in the form of the letter referred to in Section II(e) hereof but
modified to relate to the Registration Statement and Prospectus as amended and
supplemented to the date of such letter, with such changes as may be necessary
to reflect changes in the financial statements and other information derived
from the accounting records of the Company.
VIII.
(a) The Company agrees to indemnify, defend and hold harmless each Agent
and any person who controls such Agent within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act from and against any loss, expense,
liability or claim (including the reasonable cost of investigation) which,
jointly or severally, such Agent or any such other indemnified person may incur
under the 1933 Act or otherwise, insofar as such loss, expense, liability or
claim arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, the
Prospectus or any amendment or supplement thereto, or arises out of or is based
upon any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
except (i) insofar as any such loss, expense, liability or claim arises out of
or is based upon any alleged untrue statement of a material fact contained
therein in conformity with information furnished in writing by such Agent to the
Company expressly for use in any of such documents or in any Statements of
Eligibility of the Trustee (Form T-1) under the Trust Indenture Act or arises
out of or is based upon any alleged omission to state therein a material fact in
connection with such information required to be stated therein or necessary to
make such information not misleading, and (ii) such indemnity with respect to
the Prospectus shall not inure to the benefit of any Agent (or any person
controlling such Agent) from whom the person asserting any such loss, claim,
damage or liability purchased the Notes which are the subject thereof if the
Agent failed to deliver a copy of the Prospectus as amended or supplemented to
such person in connection with the sale of such Notes excluding documents
incorporated therein
12
by reference at or prior to the written confirmation of the sale of such Notes
to such person in any case where such delivery is required by the 1933 Act and
the untrue statement or omission of a material fact contained in the Prospectus
was corrected in the Prospectus as amended or supplemented. The Company's
agreement to indemnify each Agent or any such other indemnified person as
aforesaid is expressly conditioned upon it being notified of the action in
connection therewith brought against an Agent or such controlling person by
letter or telegram or other facsimile transmission addressed to the Company with
reasonable promptness after the first legal process which discloses the nature
of the liability or claim shall have been served upon an Agent or such
controlling person (or after it shall have received notice of such service upon
any agent designated by it), but failure so to notify the Company shall not
relieve the Company from any liability which it may have to an Agent or to such
other indemnified person otherwise than on account of the indemnity agreement
contained in this Section VIII except to the extent, if any, that such failure
materially prejudices the Company.
The Company shall assume the defense of any suit brought to enforce any
such liability or claim, including the employment of counsel satisfactory to
such Agent or such other controlling person and the payment of all expenses. The
Agent or such other indemnified person against whom such suit is brought shall
have the right to employ separate counsel in any such suit and participate in
the defense thereof, but the fees and expenses of such counsel shall be at such
Agent's expense or the expense of such controlling person unless (i) the
employment of such counsel has been specifically authorized by the Company or
(ii) the named parties to any such suit (including any impleaded parties)
include such Agent or such controlling person and the Company and such Agent or
such other controlling person shall have been advised by such counsel that there
may be one or more legal defenses available to it which are different from or
additional to those available to the Company, in which case the Company shall
not have the right to assume the defense of such action on behalf of such Agent
or such other controlling person, it being understood, however, that the Company
shall not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (and any required local
counsel) for such Agent and such other indemnified persons, which firm (and
local counsel, if any) shall be designated in writing by the Agent. The Company
shall not be liable for any settlement of any such action effected without its
consent (which will not be unreasonably withheld or delayed).
The Company agrees to notify each Agent with reasonable promptness of the
commencement of any litigation or proceedings against the Company or any of its
officers or directors in connection with the issue and sale of the Notes or with
the Registration Statement or Prospectus.
(b) Each Agent severally agrees to indemnify, defend and hold harmless the
Company, its directors and any person who controls the Company within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act from and
against any loss, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, the Company or any other indemnified
person may incur under the Act or otherwise, insofar as such loss, expense,
liability or claim arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, the Prospectus or any amendment or supplement thereto which is in
reliance on and in conformity with information
13
furnished in writing by an Agent to the Company expressly for use with reference
to such Agent, or arises out of or is based upon any omission or alleged
omission to state a material fact in connection with such information required
to be stated in any of such documents or necessary to make such information not
misleading. Each Agent's agreement to indemnify the Company and any other
indemnified person as aforesaid is expressly conditioned upon such Agent being
notified of the action in connection therewith brought against the Company or
any other indemnified person by letter, telegram, or facsimile transmission
addressed to it at its address furnished to the Company for the purpose, with
reasonable promptness after the first legal process which discloses the nature
of the liability or claim shall have been served upon the Company or any other
indemnified person (or after the Company or any such person shall have received
notice of such service on any agent designated by the Company or any such
person), but failure so to notify an Agent shall not relieve such Agent from any
liability which it may have to the Company or any other indemnified person
otherwise than on account of the indemnity agreement contained in this Section
VIII except to the extent, if any, that such failure materially prejudices such
Agent.
Each Agent shall assume the defense of any suit brought to enforce any
such liability or claim, including the employment of counsel satisfactory to the
Company or such other person and the payment of all expenses. The Company or
other indemnified person against whom such suit is brought shall have the right
to employ separate counsel in any such suit and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
the Company or such other indemnified person unless (i) the employment of such
counsel has been specifically authorized by such Agent or (ii) the named parties
to any suit (including any impleaded parties) include the Company or such other
indemnified person and such Agent, and the Company or such other indemnified
person shall have been advised by such counsel that there may be one or more
legal defenses available to it which are different from or additional to those
available to the Agent, in which case the Agent shall not have the right to
assume the defense of such action on behalf of the Company or such other
indemnified person, it being understood, however, that such Agent shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys (and any required local counsel) for
the Company and such other indemnified person, which firm (and local counsel, if
any) shall be designated in writing by the Company. An Agent shall not be liable
for any settlement of any such action effected without such Agent's consent
(which will not be unreasonably withheld or delayed).
(c) If the indemnification provided for in this Agreement is unavailable
to, or insufficient to hold harmless, an indemnified party under subsections (a)
and (b) above for any reason other than as specified therein in respect of any
losses, expenses, liabilities or claims referred to therein, then each
applicable indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, expenses, liabilities or claims (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the applicable Agents on the other hand from the offering of the
Notes to which such losses, expenses, liabilities or claims relate or (ii) if
the allocation provided in clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and the applicable
14
Agents on the other in connection with the statements or omissions which
resulted in such losses, expenses, liabilities or claims, as well as any other
relevant equitable considerations. The relative fault of the Company on the one
hand and the Agents on the other shall be determined by reference to, among
other things, whether the untrue statement or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Agents and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by a party as a
result of the losses, claims, expenses and liabilities referred to above shall
be deemed to include any legal or other fees or expenses reasonably incurred by
such party in connection with investigating or defending any claim or action.
The Company and the Agents agree that it would not be just and
equitable if contribution pursuant to this Agreement were determined by pro rata
allocation (even if the Agents were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Agreement, no Agent shall be required to
contribute any amount in excess of the amount by which the total price at which
the Notes to which such losses, expenses, liabilities or claims relate, placed
by such Agent exceeds the amount of the damages which such Agent has otherwise
been required to pay by reason of an untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. Each Agent's obligations in this subsection (c) to contribute
are several, in the same proportion which the amount of the Notes which are the
subject of the action and which were distributed to the public through such
Agent pursuant to this Agreement bears to the total amount of such Notes
distributed to the public through all of the Agents pursuant to this Agreement,
and not joint.
IX.
The Company may elect to suspend or terminate the offering of Notes
under this Agreement at any time; the Company also (as to any one or more of the
Agents) or any Agent (as to itself) may terminate the appointment and
arrangements described in this Agreement. Upon receipt of instructions from the
Company, the Purchasing Agent shall suspend or terminate the participation of
any Selected Dealer under the Master Selected Dealer Agreement between the
Purchasing Agent and the Selected Dealers. Such actions may be taken, in the
case of the Company, by giving prompt written notice of suspension to all of the
Agents and by giving not less than five days' written notice of termination to
the affected party and the other parties to this Agreement, or in the case of an
Agent, by giving not less than five days' written notice of termination to the
Company and except that, if at the time of termination an offer for the purchase
of Notes shall have been accepted by the Company but the time of delivery to the
purchaser or his agent of the Note or Notes relating thereto shall not yet have
occurred, the Company shall have the obligations provided herein with respect to
such Note or Notes. The Company shall promptly notify the other parties in
writing of any such termination.
The Purchasing Agent may, and, upon the request of an Agent with
respect to any Notes being purchased by such Agent shall, terminate any
agreement hereunder by the
15
Purchasing Agent to purchase such Notes, immediately upon notice to the Company
at any time at or prior to the Settlement Date relating thereto, (i) if there
has been, any change, or any development involving a prospective change, in or
affecting the business, properties, financial condition or results of operations
of the Company or its subsidiaries the effect of which is, in the judgment of
such Agent, so material and adverse to the Company so as to make it
impracticable or inadvisable to proceed with the soliciting of offers to
purchase the Notes contemplated by the Registration Statement and the
Prospectus, or (ii) if there has occurred any outbreak or escalation of
hostilities, national emergency or other calamity or crisis or any change in
financial, political or economic conditions in the United States or elsewhere,
the effect of which on the financial markets of the United States or the
international financial markets is such as to make it, in the reasonable
judgment of the Purchasing Agent or such Agent or Agents, impracticable or
inadvisable to market the Notes or enforce contracts for the sale of the Notes,
or (iii) if trading in any securities of the Company has been suspended by the
SEC or a national securities exchange, or if trading generally on either the New
York Stock Exchange or the National Association of Securities Dealers Automated
Quotations System or any other exchange on which the Notes may be listed has
been suspended, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices for securities have been required, by either of said
exchanges or by order of the SEC or any other governmental authority, or if a
general moratorium on commercial banking has been declared by either federal or
New York state authorities, or if a material disruption in commercial banking or
securities settlement or clearance services in the United States has occurred,
or (iv) if the credit rating assigned by any nationally recognized statistical
rating organization to any debt securities of the Company as of the date of such
agreement shall have been lowered or withdrawn since that date or if any such
nationally recognized statistical rating organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its credit ratings of any debt securities of the Company since
that date, or (v) if there shall have come to the attention of the Purchasing
Agent or such Agent or Agents any facts that would cause them to believe that
the Prospectus, at the time it was required to be delivered to a purchaser of
Notes, included an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in light of the
circumstances existing at the time of such delivery, not misleading. As used in
this Section IX, the term "Prospectus" means the Prospectus in the form first
provided to the applicable Agent or Agents for use in confirming sales of the
related Notes.
Any Terms Agreement shall be subject to termination in the absolute
discretion of the Agents on the terms set forth or incorporated by reference
therein. The termination of this Agreement shall not require termination of any
agreement by the Purchasing Agent to purchase Notes as principal, and the
termination of any such agreement shall not require termination of this
Agreement.
If this Agreement is terminated, Section VIII and Section XII hereof
shall survive and shall remain in effect; provided that if at the time of
termination of this Agreement an offer to purchase Notes has been accepted by
the Company but the time of delivery to the Purchasing Agent of such Notes has
not occurred, the provisions of all of Section III, Section IV(b) and Section V
shall also survive until time of delivery.
16
In the event a proposed offering is not completed according to the
terms of this Agreement, an Agent will be reimbursed by the Company only for
out-of-pocket accountable expenses actually incurred.
X.
Except as otherwise specifically provided herein, all statements,
requests, notices and advices hereunder shall be in writing, or by telephone if
promptly confirmed in writing, and if to an Agent shall be sufficient in all
respects if delivered in person or sent by telex, facsimile transmission
(confirmed in writing), or registered mail to such Agent at its address, telex
or facsimile number set forth on Annex A hereto and if to the Company shall be
sufficient in all respects if delivered or sent by telex, facsimile transmission
(confirmed in writing) or registered mail to the Company at the address
specified below. All such notices shall be effective on receipt.
If to the Company:
CIT Group Inc.
▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice President and General
Counsel
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section.
XI.
This Agreement shall be binding upon the Agents and the Company, and
inure solely to the benefit of the Agents and the Company and any other person
expressly entitled to indemnification hereunder and the respective personal
representatives, successors and assigns of each, and no other person shall
acquire or have any rights under or by virtue of this Agreement.
XII.
This Agreement shall be governed by and construed in accordance with
the substantive laws of the State of New York. Each party to this Agreement
irrevocably agrees that any legal action or proceeding against it arising out of
or in connection with this Agreement or for recognition or enforcement of any
judgment rendered against it in connection with this Agreement may be brought in
any federal or New York State court sitting in the County of New York, New York,
and, by execution and delivery of this Agreement, such party hereby irrevocably
accepts and submits to the non-exclusive jurisdiction of each of the aforesaid
courts in person, generally and unconditionally with respect to any such action
or proceeding for itself and in respect of its property, assets and revenues.
Each party hereby also irrevocably waives, to the fullest extent permitted by
law, any objection which it may now or hereafter have to the laying of venue of
any such action or proceeding brought in any such court and any claim that any
such action or proceeding has been brought in an inconvenient forum.
17
XIII.
The Company will pay the following expenses incident to the
performance of its obligations under this Agreement: (i) the preparation and
filing of the Registration Statement; (ii) the preparation, issuance and
delivery of the Notes; (iii) the fees and disbursements of the Company's
auditors, of the Trustee and its counsel and of any paying or other agents
appointed by the Company; (iv) the printing and delivery to the Agents in
quantities as hereinabove stated of copies of the Registration Statement and the
Prospectus; (v) if the Company lists Notes on a securities exchange, the costs
and fees of such listing; (vi) the cost of providing CUSIP or other
identification numbers for the Notes, (vii) the fees and expenses, if any,
(including fees and disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇ LLP,
counsel for the Agents, if applicable) incurred with respect to any filing with
the National Association of Securities Dealers, Inc.; (viii) all reasonable
expenses (including fees and disbursements of any counsel specifically engaged
for blue sky purposes) in connection with "blue sky" qualifications and (ix) any
fees charged by nationally recognized statistical rating organizations for the
credit rating of the Notes.
This Agreement may be executed by each of the parties hereto in any
number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument. Facsimile signatures shall be deemed original
signatures.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
18
If the foregoing is in accordance with your understanding, please sign
and return to us a counterpart hereof, and upon acceptance hereof by you, this
letter and such acceptance hereof shall constitute a binding agreement between
the Company and you.
Very truly yours,
CIT GROUP INC.
By:
------------------------------------
Name:
Title:
Confirmed and accepted as of the date first above written:
BANC OF AMERICA SECURITIES LLC
By:
---------------------------------
Name:
Title:
INCAPITAL LLC
By:
---------------------------------
Name:
Title:
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
By:
---------------------------------
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & CO., INC.
By:
---------------------------------
Name:
Title:
CITIGROUP GLOBAL MARKETS INC.
By:
---------------------------------
Name:
Title:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & CO., L.P.
By:
---------------------------------
Name:
Title:
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
By:
---------------------------------
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By:
---------------------------------
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ASSOCIATES, INC.
By:
---------------------------------
Name:
Title:
RBC ▇▇▇▇ ▇▇▇▇▇▇▇▇
By:
---------------------------------
Name:
Title:
UBS FINANCIAL SERVICES, INC.
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
WACHOVIA CAPITAL MARKETS, LLC
By:
---------------------------------
Name:
Title:
ANNEX A
AGENT CONTACT INFORMATION
Banc of America Securities LLC
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Rock Fu
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Incapital LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co., Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., L.P.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
4 World Financial ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Global Transaction Management - ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Manager - Continuously Offered Products
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Investment Banking Information Center
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
RBC ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
UBS Financial Services, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Debt Trading
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
UBS Financial Services, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Wachovia Capital Markets, LLC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
EXHIBIT A
DEALER AGENT PROGRAM
The following Discounts are payable as a percentage of the non-discounted Price
to Public of each Note sold through the Purchasing Agent.
9 months to less than 23 months...................................... 0.200%
23 months to less than 35 months....................................... 0.400%
35 months to less than 47 months....................................... 0.625%
47 months to less than 59 months....................................... 0.750%
59 months to less than 71 months....................................... 1.000%
71 months to less than 83 months....................................... 1.100%
83 months to less than 95 months....................................... 1.200%
95 months to less than 107 months...................................... 1.300%
107 months to less than 119 months..................................... 1.400%
119 months to less than 131 months..................................... 1.500%
131 months to less than 143 months..................................... 1.600%
143 months to less than 179 months..................................... 1.750%
179 months to less than 239 months..................................... 2.000%
239 months to less than 360 months..................................... 2.500%
360 months or greater.................................................. 3.150%
A-1
EXHIBIT B
CIT Group Inc.
$[___]
INTERNOTES
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
ADMINISTRATIVE PROCEDURES
InterNotes, due nine months or more from date of issue (the "Notes") may be
offered on a continuing basis by CIT Group Inc. (the "Company"). The Notes will
be offered by Incapital LLC (the "Purchasing Agent"), Banc of America Securities
LLC, Bear, ▇▇▇▇▇▇▇ & Co. Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co., Inc., Citigroup Global
Markets Inc., ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., L.P., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates,
Inc., RBC ▇▇▇▇ ▇▇▇▇▇▇▇▇, UBS Financial Services, Inc. and Wachovia Capital
Markets, LLC (collectively, the "Agents") pursuant to a Selling Agent Agreement
among the Company and the Agents dated as of the date hereof (the "Selling Agent
Agreement") and one or more terms agreements substantially in the form attached
to the Selling Agent Agreement as Exhibit C (each a "Terms Agreement"). The
Notes are being resold by the Purchasing Agent (and by any Agent that purchases
them from the Purchasing Agent) (i) directly to customers of the Agents or (ii)
to selected broker-dealers (the "Selected Dealers") for distribution to their
customers pursuant to a Master Selected Dealer Agreement (a "Dealers Agreement")
attached to the Selling Agent Agreement as Exhibit E. The Notes have been
registered with the Securities and Exchange Commission (the "Commission"). ▇.▇.
▇▇▇▇▇▇ Trust Company, National Association is the trustee (the "Trustee") under
the Indenture, dated as of ________, 2004, between the Company and the Trustee
(the "Indenture"), covering, among other debt securities, the Notes. Pursuant to
the terms of the Indenture, ▇.▇. ▇▇▇▇▇▇ Trust Company, National Association also
will serve as authenticating agent, issuing agent and paying agent.
Unless otherwise agreed by the Agents and the Company, Notes will be purchased
by the Purchasing Agent as principal as set forth herein. Such purchases will be
made in accordance with terms agreed upon by the Purchasing Agent and the
Company (which terms, unless otherwise agreed, shall be agreed upon orally, with
written confirmation prepared by the Agents and mailed to the Company).
Each tranche of Notes will be issued in book-entry form only and represented by
one or more fully registered global notes without coupons (each, a "Global
Note") held by the Trustee, as agent for The Depository Trust Company ("DTC")
and recorded in the book-entry system maintained by DTC. Each Global Note will
have the annual interest rate, maturity and other terms set forth in the
relevant Pricing Supplement (as defined in the Selling Agent Agreement). Owners
of beneficial interests in a Global Note will be entitled to physical delivery
of Notes issued in certificated form equal in principal amount to their
respective beneficial interests only upon certain limited circumstances
described in the Indenture.
Administrative procedures and specific terms of the offering are explained
below. Administrative and record-keeping responsibilities will be handled for
the Company by its Treasury Department.
B-1
The Company will advise the Agents and the Trustee in writing of those persons
handling administrative responsibilities with whom the Agents and the Trustee
are to communicate regarding offers to purchase Notes and the details of their
delivery.
Notes will be issued in accordance with the administrative procedures set forth
herein. To the extent the procedures set forth below conflict with or omit
certain of the provisions of the Notes, the Indenture, the Selling Agent
Agreement or information set forth in the Prospectus (as defined in the Selling
Agent Agreement) and the Pricing Supplement (together referred to herein as the
"Prospectus"), the relevant provisions of the Notes, the Indenture, the Selling
Agent Agreement and the information set forth in Prospectus shall control.
Capitalized terms used herein that are not otherwise defined shall have the
meanings ascribed thereto in the Selling Agent Agreement, the Prospectus in the
form most recently filed with the SEC pursuant to Rule 424 of the Securities Act
of 1933 Act (the "1933 Act"), or in the Indenture.
Administrative Procedures for Notes
In connection with the qualification of Notes for eligibility in the book-entry
system maintained by DTC, the Trustee will perform the custodial, document
control and administrative functions described below, in accordance with its
obligations under a Letter of Representations from the Company and the Trustee
to DTC, dated ________, 2004 and a Medium-Term Note Certificate Agreement
between the Trustee and DTC (the "Certificate Agreement") dated May 26, 1989 and
its obligations as a participant in DTC, including DTC's Same-Day Funds
Settlement System ("SDFS"). The procedures set forth below may be modified in
compliance with DTC's then-applicable procedures and upon agreement by the
Company, the Trustee and the Purchasing Agent. Notes for which interest is
calculated on the basis of a fixed interest rate, which may be zero, are
referred to herein as "Fixed Rate Notes." Notes for which interest is calculated
on the basis of a floating interest rate are referred to herein as "Floating
Rate Notes."
Maturities: Each Note will mature on a date (the "Maturity
Date") not less than nine months after the date
of delivery by the Company of such Note. Notes
will mature on any date selected by the initial
purchaser and agreed to by the Company.
"Maturity" when used with respect to any Note
means the date on which the outstanding
principal amount of such Note becomes due and
payable in full in accordance with its terms,
whether at its Maturity Date or by declaration
of acceleration, call for redemption, repayment
or otherwise.
Issuance: All Notes having the same terms will be
represented initially by a single Global Note.
Each Global Note will be dated and issued as of
the date of its authentication by the Trustee.
Each Global Note will bear an original issue
date (the "Original Issue Date"). The Original
Issue Date shall remain the same for all Notes
subsequently issued upon transfer, exchange or
substitution of an original Note regardless of
their dates of
B-2
authentication.
Identification Numbers: The Company has received from the CUSIP Service
Bureau (the "CUSIP Service Bureau") of Standard
& Poor's Corporation ("Standard & Poor's") one
series of CUSIP numbers consisting of
approximately 900 CUSIP numbers for future
assignment to Global Notes. The Company will
provide the Purchasing Agent, DTC and the
Trustee with a list of such CUSIP numbers. On
behalf of the Company, the Purchasing Agent
will assign CUSIP numbers as described below
under Settlement Procedure "B". DTC will notify
the CUSIP Service Bureau periodically of the
CUSIP numbers that the Company has assigned to
Global Notes. The Company will reserve
additional CUSIP numbers when necessary for
assignment to Global Notes and will provide the
Purchasing Agent, the Trustee and DTC with the
list of additional CUSIP numbers so obtained.
Registration: Unless otherwise specified by DTC, Global Notes
will be issued only in fully registered form
without coupons. Each Global Note will be
registered in the name of Cede & Co., as
nominee for DTC, on the Note Register
maintained under the Indenture by the Trustee.
The beneficial owner of a Note (or one or more
indirect participants in DTC designated by such
owner) will designate one or more participants
in DTC (with respect to such Note, the
"Participants") to act as agent or agents for
such owner in connection with the book-entry
system maintained by DTC, and DTC will record
in book-entry form, in accordance with
instructions provided by such Participants, a
credit balance with respect to such beneficial
owner of such Note in the account of such
Participants. The ownership interest of such
beneficial owner in such Note will be recorded
through the records of such Participants or
through the separate records of such
Participants and one or more indirect
participants in DTC.
Transfers: Transfers of interests in a Global Note will be
accomplished by book entries made by DTC and,
in turn, by Participants (and in certain cases,
one or more indirect participants in DTC)
acting on behalf of beneficial transferors and
transferees of such interests.
Exchanges: The Trustee, at the Company's request, may
deliver to DTC and the CUSIP Service Bureau at
any time a written notice of consolidation
specifying (a) the CUSIP numbers of two or more
Global Notes outstanding on such date that
represent Notes having the same terms (except
that Issue Dates need not be the
B-3
same) and for which interest, if any, has been
paid to the same date and which otherwise
constitute Notes of the same series and tenor
under the Indenture, (b) a date, occurring at
least 30 days after such written notice is
delivered and at least 30 days before the next
Interest Payment Date, if any, for the related
Notes, on which such Global Notes shall be
exchanged for a single replacement Global Note;
and (c) a new CUSIP number, obtained from the
Company, to be assigned to such replacement
Global Note. Upon receipt of such a notice, DTC
will send to its participants (including the
Issuing Agent) and the Trustee a written
reorganization notice to the effect that such
exchange will occur on such date. Prior to the
specified exchange date, the Trustee will
deliver to the CUSIP Service Bureau written
notice setting forth such exchange date and the
new CUSIP number and stating that, as of such
exchange date, the CUSIP numbers of the Global
Notes to be exchanged will no longer be valid.
On the specified exchange date, the Trustee
will exchange such Global Notes for a single
Global Note bearing the new CUSIP number and
the CUSIP numbers of the exchanged Global Notes
will, in accordance with CUSIP Service Bureau
procedures, be cancelled and not immediately
reassigned. Notwithstanding the foregoing, if
the Global Notes to be exchanged exceed
$500,000,000 in aggregate principal or face
amount, one replacement Global Note will be
authenticated and issued to represent each
$500,000,000 of principal or face amount of the
exchanged Global Notes and an additional Global
Note will be authenticated and issued to
represent any remaining principal amount of
such Global Notes (See "Denominations" below).
Denominations: Unless otherwise agreed by the Company, Notes
will be issued in minimum denominations of
$1,000 or more, and integral multiples of
$1,000 in excess thereof. Global Notes will be
denominated in principal or face amounts not in
excess of $500,000,000 or any other limit set
by the DTC (the "Permitted Amount"). If one or
more Notes having an aggregate principal or
face amount in excess of the Permitted Amount
would, but for the preceding sentence, be
represented by a single Global Note, then one
Global Note will be issued to represent each
Permitted Amount principal or face amount of
such Note or Notes and an additional Global
Note will be Issued to represent any remaining
principal amount of such Note or Notes. In such
case, each of the Global Notes representing
such Note or Notes shall be assigned the same
CUSIP number.
Issue Price: Unless otherwise specified in an applicable
Pricing Supplement,
B-4
each Note will be issued at the percentage of
principal amount specified in the Prospectus
relating to such Note.
Interest: General. Each Note will bear interest at either
a fixed rate or a floating rate. Interest on
each Note will accrue from the Issue Date of
such Note for the first interest period and
from the most recent Interest Payment Date to
which interest has been paid for all subsequent
interest periods. Except as set forth
hereafter, each payment of interest on a Note
will include interest accrued to, but
excluding, as the case may be, the Interest
Payment Date (provided that, in the case of
Floating Rate Notes which reset daily or
weekly, interest payments will include accrued
interest to and including the Regular Record
Date immediately preceding the Interest Payment
Date) or the date of Maturity (other than a
Maturity Date of a Fixed Rate Note occurring on
the 31st day of a month in which case such
payment of interest will include interest
accrued to but excluding the 30th day of such
month) or on the date of redemption or
repayment if a Note is repurchased by the
Company prior to maturity pursuant to mandatory
or optional redemption or repayment provisions
or the Survivor's Option. Any payment of
principal, premium or interest required to be
made on a day that is not a Business Day (as
defined below) may be made on the next
succeeding Business Day, except that in the
case of a Floating Rate Note for which the
interest rate basis is LIBOR, if such business
day is in the next succeeding calendar month,
such Interest Payment Date will be the
immediately preceding business day, and no
interest shall accrue as a result of any such
delayed payment.
Each pending deposit message described under
Settlement Procedure "C" below will be routed
to Standard & Poor's Corporation, which will
use the message to include certain information
regarding the related Notes in the appropriate
daily bond report published by Standard &
Poor's Corporation.
Each Note will bear interest from, and
including, its Issue Date at the rate, or in
accordance with the interest rate basis, set
forth thereon and in the applicable Pricing
Supplement until the principal amount thereof
is paid, or made available for payment, in
full.
Unless otherwise specified in the applicable
Pricing Supplement, interest on each Note will
be payable either monthly, quarterly,
semi-annually or annually on each Interest
Payment Date and at Maturity (or on the date of
redemption or repayment if a Note is
B-5
repurchased by the Company prior to maturity
pursuant to mandatory or optional redemption or
repayment provisions or the Survivor's Option).
Interest will be payable to the person in whose
name a Note is registered at the close of
business on the Regular Record Date next
preceding each Interest Payment Date; provided,
however, interest payable at Maturity, on a
date of redemption or repayment or in
connection with the exercise of the Survivor's
Option will be payable to the person to whom
principal shall be payable.
The interest rates the Company will agree to
pay on newly-issued Notes are subject to change
without notice by the Company from time to
time, but no such change will affect any Notes
already issued or as to which an offer to
purchase has been accepted by the Company.
Unless otherwise specified in the applicable
Pricing Supplement, the Interest Payment Dates
for a Note that provides for monthly interest
payments shall be the fifteenth day of each
calendar month, commencing in the calendar
month that next succeeds the month in which the
Note is issued; in the case of a Note that
provides for quarterly interest payments, the
Interest Payment Dates shall be the fifteenth
day of each third month, commencing in the
third succeeding calendar month following the
month in which the Note is issued; in the case
of a Note that provides for semi-annual
interest payments, the Interest Payment dates
shall be the fifteenth day of each sixth month,
commencing in the sixth succeeding calendar
month following the month in which the Note is
issued; in the case of a Note that provides for
annual interest payments, the Interest Payment
Date shall be the fifteenth day of every
twelfth month, commencing in the twelfth
succeeding calendar month following the month
in which the Note is issued. Unless otherwise
specified in the applicable Pricing Supplement,
the Regular Record Date with respect to any
Interest Payment Date shall be the first day of
the calendar month in which such Interest
Payment Date occurred, except that the Regular
Record Date with respect to the final Interest
Payment Date shall be the final Interest
Payment Date.
Each payment of interest on a Note shall
include accrued interest from and including the
Issue Date or from and including the last day
in respect of which interest has been paid (or
duly provided for), as the case may be, to, but
excluding, the Interest Payment Date, Maturity
Date or date of redemption or repayment, as the
case may be.
B-6
Calculation of Interest: Fixed Rate Notes. Unless otherwise specified in
the applicable Pricing Supplement, interest on
Fixed Rate Notes (including interest for
partial periods) will be calculated on the
basis of a 360-day year of twelve 30-day
months.
Floating Rate Notes. Interest rates on Floating
Rate Notes will be determined as set forth
therein and in the applicable Pricing
Supplement. Interest on Floating Rate Notes,
except as otherwise set forth therein, will be
calculated on the basis of actual days elapsed
and a year of 360 days, except that in the case
of a Floating Rate Note for which the interest
rate basis is the Treasury Rate, interest will
be calculated on the basis of the actual number
of days in the year.
Business Day: "Business Day" means, unless otherwise
specified in the applicable Pricing Supplement,
any day other than a Saturday or Sunday, that
is neither a legal holiday nor a day on which
commercial banks are authorized or required by
law, regulation or executive order to close in
The City of New York.
Payments of Principal and
Interest: Payments of Principal and Interest. Promptly
after each Regular Record Date, the Trustee
will deliver to the Company and DTC a written
notice specifying by CUSIP number the amount of
interest, if any, to be paid on each Global
Note on the following Interest Payment Date
(other than an Interest Payment Date coinciding
with a Maturity Date) and the total of such
amounts. DTC will confirm the amount payable on
each Global Note on such Interest Payment Date
by reference to the daily bond reports
published by Standard & Poor's. On such
Interest Payment Date, the Company will pay to
the Trustee, and the Trustee in turn will pay
to DTC, such total amount of interest due
(other than on the Maturity Date), at the times
and in the manner set forth below under "Manner
of Payment".
Payments on the Maturity Date. On or about the
first Business Day of each month, the Trustee
will deliver to the Company and DTC a written
list of principal, premium, if any, and
interest to be paid on each Global Note
representing Notes maturing or subject to
redemption (pursuant to a sinking fund or
otherwise) or repayment ("Maturity") in the
following month. The Trustee, the Company and
DTC will confirm the amounts of such principal,
premium, if any, and interest payments with
respect to each Global Note on or about the
fifth Business Day
B-7
preceding the Maturity Date of such Global
Note. On the Maturity Date, the Company will
pay to the Trustee, and the Trustee in turn
will pay to DTC, the principal amount of such
Global Note, together with interest and
premium, if any, due on such Maturity Date, at
the times and in the manner set forth below
under "Manner of Payment". Promptly after
payment to DTC of the principal and interest
due on the Maturity Date of such Global Note
and all other Notes represented by such Global
Note, the Trustee will cancel and destroy such
Global Note in accordance with the Indenture
and so advise the Company.
Manner of Payment. The total amount of any
principal, premium, if any, and interest due on
Global Notes on any Interest Payment Date or at
Maturity shall be paid by the Company to the
Trustee in immediately available funds on such
date. The Company will make such payment on
such Global Notes to an account specified by
the Trustee. Prior to 10:00 a.m., New York City
time, on the date of Maturity or as soon as
possible thereafter, the Trustee will make
payment to DTC in accordance with existing
arrangements between DTC and the Trustee, in
funds available for immediate use by DTC, each
payment of interest, principal and premium, if
any, due on a Global Note on such date. On each
Interest Payment Date (other than on the
Maturity Date) the Trustee will pay DTC such
interest payments in same-day funds in
accordance with existing arrangements between
the Trustee and DTC. Thereafter, on each such
date, DTC will pay, in accordance with its SDFS
operating procedures then in effect, such
amounts in funds available for immediate use to
the respective Participants with payments in
amounts proportionate to their respective
holdings in principal amount of beneficial
interest in such Global Note as are recorded in
the book-entry system maintained by DTC.
Neither the Company nor the Trustee shall have
any direct responsibility or liability for the
payment by DTC of the principal of, or premium,
if any, or interest on, the Notes to such
Participants.
Withholding Taxes. The amount of any taxes
required under applicable law to be withheld
from any interest payment on a Note will be
determined and withheld by the Participant,
indirect participant in DTC or other person
responsible for forwarding payments and
materials directly to the beneficial owner of
such Note.
Purchase of Notes by the
Purchasing Agent: Unless otherwise agreed by the Agents and the
Company, Notes
B-8
offered from time to time by the Company will
be purchased by the Purchasing Agent as
principal for subsequent resale to the Agents
and Selected Dealers party to the Master
Selected Dealer Agreement in the form attached
as Exhibit E to the Selling Agent Agreement.
Preparation of Pricing If any offer to purchase a Note is accepted by
Supplement: or on behalf of the Company, the Purchasing
Agent will use its reasonable best efforts to
send by email or telecopy a draft Pricing
Supplement (substantially in the form attached
to the Selling Agent Agreement as Exhibit D) to
the Company reflecting the terms of such Note
by 2:00 p.m. (New York City time) on the
applicable Trade Day. The Company shall use its
reasonable best efforts to deliver any comments
to such Pricing Supplement by email or telecopy
to the Purchasing Agent and the Trustee by 5:00
p.m. (New York City Time) on the applicable
Trade Day. The Company will file such Pricing
Supplement with the SEC in accordance with the
applicable paragraph of Rule 424(b) under the
1933 Act. The Purchasing Agent shall use its
reasonable best efforts to send such Pricing
Supplement and the Prospectus by email or
telecopy or overnight express (for delivery by
the close of business on the applicable Trade
Day, but in no event later than 11:00 a.m. New
York City time on the Business Day immediately
following the applicable Trade Day and no
earlier than the earlier of (i) 5:00 p.m. (New
York City time) on the applicable Trade Date or
(ii) such time after which the Purchasing Agent
shall have incorporated the comments of the
Company, if any, to the Pricing Supplement, to
each Agent (or other Selected Dealer) which
made or presented the offer to purchase the
applicable Note and the Trustee at the
following applicable address:
if to Banc of America Securities LLC, to:
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Rock Fu
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
with a copy to:
▇▇▇▇ ▇▇▇▇▇
Banc of America Securities LLC
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, 27th Floor
▇-▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
if to Incapital LLC, to:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
if to Bear, ▇▇▇▇▇▇▇ & Co. Inc., to:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
if to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co., Inc., to:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
if to Citigroup Global Markets Inc., to:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇.▇▇▇
if to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., L.P., to:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ Eshing
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
if to ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
c/o ADP Integrated Distribution Services
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
B-10
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇
if to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
if to ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc. to:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
if to RBC ▇▇▇▇ ▇▇▇▇▇▇▇▇, to:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
if to UBS Financial Services, Inc. to:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Debt Trading
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
UBS Financial Services, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
B-11
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇.▇▇▇
if to Wachovia Capital Markets, LLC, to:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
and if to the Trustee, to:
▇.▇. ▇▇▇▇▇▇ Trust Company, National Association
1999 Avenue of the Stars, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services
For record keeping purposes, one copy of each
Pricing Supplement, as so filed, shall also be
mailed or telecopied to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ LLP
▇▇▇▇ ▇ ▇▇., ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier (▇▇▇) ▇▇▇-▇▇▇▇
and to:
Banc of America Securities LLC
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Each such Agent (or Selected Dealer), in turn,
pursuant to the terms of the Selling Agent
Agreement and the Master Selected Dealer
Agreement, will cause to be timely delivered a
copy of the Prospectus and the applicable
Pricing Supplement to each purchaser of Notes
from such Agent or Selected Dealer.
B-12
Outdated Pricing Supplements and the
Prospectuses to which they are attached (other
than those retained for files) will be
destroyed by those in possession thereof.
Delivery of Confirmation
and Prospectus to Purchaser
by Presenting Agent: The Agents will deliver a Prospectus and
Pricing Supplement herein described with
respect to each Note sold by it.
For each offer to purchase a Note accepted by
or on behalf of the Company, the Purchasing
Agent will confirm in writing with each Agent
or Selected Dealer the terms of such Note, the
amount being purchased by such Agent or
Selected Dealer and other applicable details
described above and delivery and payment
instructions, with a copy to the Company.
In addition, the Purchasing Agent, other Agent
or Selected Dealer, as the case may be, will
deliver to investors purchasing the Notes the
Prospectus (including the Pricing Supplement)
in relation to such Notes prior to or
simultaneously with delivery of the
confirmation of sale or delivery of the Note.
Settlement: The receipt of immediately available funds by
the Company in payment for Notes and the
authentication and issuance of the Global Note
representing such Notes shall constitute
"Settlement" with respect to such Note. All
orders accepted by the Company will be settled
within three Business Days pursuant to the
timetable for Settlement set forth below,
unless the Company and the purchaser agree to
Settlement on another specified date, and shall
be specified upon acceptance of such offer;
provided, however, in all cases the Company
will notify the Trustee on the date issuance
instructions are given.
Settlement Procedures: Settlement Procedures with regard to each Note
sold by an Agent shall be as follows:
A. After the acceptance of an offer by the
Company with respect to a Note, the
Purchasing Agent will communicate the
following details of the terms of such
offer (the "Note Sale Information") to the
Company in writing or by facsimile
transmission, email or other written means
acceptable to the Company:
1. Principal amount of the purchase;
B-13
2. In the case of a Fixed Rate Note, the
interest rate or, in the case of a
Floating Rate Note, the interest rate
basis (including, if LIBOR, the
method for determining LIBOR),
initial interest rate (if known at
such time), Index Maturity, Interest
Reset Period and Interest Reset Dates
(if any), Spread and/or Spread
Multiplier (if any), minimum interest
rate (if any) and maximum interest
rate (if any);
3. Interest Payment Frequency;
4. Settlement Date;
5. Maturity Date;
6. Price to Public;
7. Purchasing Agent's commission
determined pursuant to Section IV(a)
of the Selling Agent Agreement;
8. Net proceeds to the Company;
9. Trade Date;
10. If a Note is redeemable by the
Company or repayable by the
Noteholder, such of the following as
are applicable:
11. (i) The date on and after
which such Note may be
redeemed/repaid (the
"Redemption/Repayment
Commencement Date"),
(ii) Initial redemption/repayment
price (% of par), and
(iii) Amount (% of par) that the
initial redemption/repayment
price shall decline (but not
below par) on each anniversary
of the Redemption/Repayment
Commencement Date;
12. Whether the Note has a Survivor's
Option;
B-14
13. DTC Participant Number of the
institution through which the
customer will hold the beneficial
interest in the Global Note; and
14. Such other terms as are necessary to
complete the applicable form of Note.
B. The Company will confirm the previously
assigned CUSIP number to the Global Note
representing such Note and then advise the
Trustee and the Purchasing Agent by
telephone (confirmed in writing at any
time on the same date) or by telecopier or
other form of electronic transmission of
the information received in accordance
with Settlement Procedure "A" above, the
assigned CUSIP number and the name of the
Purchasing Agent. Each such communication
by the Company will be deemed to
constitute a representation and warranty
by the Company to the Trustee and the
Agents that (i) such Note is then, and at
the time of issuance and sale thereof will
be, duly authorized for issuance and sale
by the Company; (ii) such Note, and the
Global Note representing such Note, will
conform with the terms of the Indenture;
and (iii) upon authentication and delivery
of the Global Note representing such Note,
the aggregate principal amount of all
Notes issued under the Indenture will not
exceed the aggregate principal amount of
Notes authorized for issuance at such time
by the Company.
C. The Trustee will communicate to DTC and
the Purchasing Agent through DTC's
Participant Terminal System, a pending
deposit message specifying the following
Settlement information:
1. The information received in
accordance with Settlement Procedure
"A".
2. The numbers of the participant
accounts maintained by DTC on behalf
of the Trustee and the Purchasing
Agent.
3. Identification as a Fixed Rate Note
or a Floating Rate Note.
B-15
4. The initial Interest Payment Date for
such Note, number of days by which
such date succeeds the related DTC
record date (which term means the
Regular Record Date), and if then
calculated, the amount of interest
payable on such Initial Interest
Payment Date (which amount shall have
been confirmed by the Trustee).
5. The CUSIP number of the Global Note
representing such Notes.
6. The frequency of interest.
7. Whether such Global Note represents
any other Notes issued or to be
issued (to the extent then known).
D. DTC will credit such Note to the
participant account of the Trustee
maintained by DTC.
E. The Trustee will complete and deliver a
Global Note representing such Note in a
form that has been approved by the
Company, the Agents and the Trustee.
F. The Trustee will authenticate the Global
Note representing such Note and maintain
possession of such Global Note.
G. The Trustee will enter an SDFS deliver
order through DTC's Participant Terminal
System instructing DTC to (i) debit such
Note to the Trustee's participant account
and credit such Note to the participant
account of the Purchasing Agent maintained
by DTC and (ii) debit the settlement
account of the Purchasing Agent and credit
the settlement account of the Trustee
maintained by DTC, in an amount equal to
the price of such Note less the Purchasing
Agent's commission. The entry of such a
deliver order shall be deemed to
constitute a representation and warranty
by the Trustee to DTC that (a) the Global
Note representing such Note has been
issued and authenticated and (b) the
Trustee is holding such Global Note
pursuant to the Certificate Agreement.
B-16
H. The Purchasing Agent will enter an SDFS
deliver order through DTC's Participant
Terminal System instructing DTC to (i)
debit such Note to the Purchasing Agent's
participant account and credit such Note
to the participant accounts of the
Participants to whom such Note is to be
credited maintained by DTC and (ii) debit
the settlement accounts of such
Participants and credit the settlement
account of the Purchasing Agent maintained
by DTC, in an amount equal to the price of
the Note less the agreed upon commission
so credited to their accounts.
I. Transfers of funds in accordance with SDFS
deliver orders described in Settlement
Procedures "G" and "H" will be settled in
accordance with SDFS operating procedures
in effect on the Settlement Date.
J. The Trustee will credit to an account
specified by the Company funds available
for immediate use in an amount equal to
the amount credited to the Trustee's DTC
participant account in accordance with
Settlement Procedure "G".
K. The Trustee will send a copy of the Global
Note representing such Note by first-class
mail to the Company.
L. Each Agent and Selected Dealer will
confirm the purchase of each Note to the
purchaser thereof either by transmitting
to the Participant to whose account such
Note has been credited a confirmation
order through DTC's Participant Terminal
System or by mailing a written
confirmation to such purchaser. In all
cases the Prospectus as most recently
amended or supplemented must accompany or
precede such confirmation.
M. On a day that is a Business Day, the
Trustee will send, by facsimile or
electronic transmission, to the Company a
statement setting forth the principal
amount of Notes outstanding as of that
date under the Indenture and setting forth
the CUSIP number(s) assigned to, and a
brief description of, any orders which the
Company has advised the Trustee but which
have not yet been settled.
B-17
Settlement Procedures
Timetable: In the event of a purchase of Notes by the
Purchasing Agent, as principal, appropriate
Settlement details, if different from those set
forth below will be set forth in the applicable
Terms Agreement to be entered into between the
Purchasing Agent and the Company pursuant to
the Selling Agent Agreement.
Settlement Procedures "A" through "M" shall be
completed as soon as possible but not later
than the respective times (New York City time)
set forth below:
Settlement
Procedure Time
--------- ----
A 2:00 p.m. on the Trade Day.
B 12:00 p.m. on the Business Day
following the Trade Day.
C 2:00 p.m. on the Business Day
before the Settlement Date.
D 10:00 a.m. on the Settlement Date.
E 12:00 p.m. on the Settlement Date.
F 12:30 a.m. on the Settlement Date.
G-I 2:00 p.m. on the Settlement Date.
▇-▇ 2:30 p.m. on the Settlement Date.
M Weekly or at the request of the
Company.
The Prospectus as most recently amended or
supplemented must accompany or precede any
written confirmation given to the customer
(Settlement Procedure "L"). Settlement
Procedure "I" is subject to extension in
accordance with any extension Fedwire closing
deadlines and in the other events specified in
the SDFS operating procedures in effect on the
Settlement Date.
If Settlement of a Note is rescheduled or
cancelled, the Trustee will deliver to DTC,
through DTC's Participant Terminal System, a
cancellation message to such effect by no later
than 2:00 p.m., New York City time, on the
Business Day immediately preceding the
scheduled Settlement Date.
B-18
Failure to Settle: If the Trustee fails to enter an SDFS deliver
order with respect to a Note pursuant to
Settlement Procedure "G", the Trustee may
deliver to DTC, through DTC's Participant
Terminal System, as soon as practicable a
withdrawal message instructing DTC to debit
such Note to the participant account of the
Trustee maintained at DTC. DTC will process the
withdrawal message, provided that such
participant account contains Notes having the
same terms and having a principal amount that
is at least equal to the principal amount of
such Note to be debited. If withdrawal messages
are processed with respect to all the Notes
issued or to be issued represented by a Global
Note, the Trustee will cancel such Global Note
in accordance with the Indenture, make
appropriate entries in its records and so
advise the Company. The CUSIP number assigned
to such Global Note shall, in accordance with
CUSIP Service Bureau procedures, be cancelled
and not immediately reassigned. If withdrawal
messages are processed with respect to one or
more, but not all, of the Notes represented by
a Global Note, the Trustee will exchange such
Global Note for two Global Notes, one of which
shall represent such Notes and shall be
cancelled immediately after issuance, and the
other of which shall represent the remaining
Notes previously represented by the surrendered
Global Note and shall bear the CUSIP number of
the surrendered Global Note. If the purchase
price for any Note is not timely paid to the
Participants with respect to such Note by the
beneficial purchaser thereof (or a person,
including an indirect participant in DTC,
acting on behalf of such purchaser), such
Participants and, in turn, the related Agent
may enter SDFS deliver orders through DTC's
participant Terminal System reversing the
orders entered pursuant to Settlement
Procedures "G" and "H", respectively.
Thereafter, the Trustee will deliver the
withdrawal message and take the related actions
described in the preceding paragraph. If such
failure shall have occurred for any reason
other than default by the Agent in the
performance of its obligations hereunder or
under the Selling Agent Agreement, the Company
will reimburse the Agent on an equitable basis
for its reasonable out-of-pocket accountable
expenses actually incurred and loss of the use
of funds during the period when they were
credited to the account of the Company.
B-19
Notwithstanding the foregoing, upon any failure
to settle with respect to a Note, DTC may take
any actions in accordance with its SDFS
operating procedures then in effect. In the
event of a failure to settle with respect to
one or more, but not all, of Notes that were to
have been represented by a Global Note, the
Trustee will provide, in accordance with
Settlement Procedures "D" and "E", for the
authentication and issuance of a Global Note
representing the other Notes to have been
represented by such Global Note and will make
appropriate entries in its records.
Trustee Not to Risk Funds: Nothing herein shall be deemed to require the
Trustee to risk or expend its own funds in
connection with any payment to the Company, or
the Agents or the purchasers, it being
understood by all parties that payments made by
the Trustee to either the Company or the Agents
shall be made only to the extent that funds are
provided to the Trustee for such purpose.
Advertising Costs: The Company shall have the sole right to
approve the form and substance of any
advertising an Agent may initiate in connection
with such Agent's solicitation to purchase the
Notes. The expense of such advertising will be
solely the responsibility of such Agent, unless
otherwise agreed to by the Company.
B-20
EXHIBIT C
TERMS AGREEMENT
_________, 20__
CIT Group Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: [Treasury Dept.]
Subject in all respects to the terms and conditions of the Selling Agent
Agreement dated ________, 2004, among CIT Group Inc. and Banc of America
Securities LLC, Incapital LLC, Bear, ▇▇▇▇▇▇▇ & Co. Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co.,
Inc., Citigroup Global Markets Inc., ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., L.P., ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, ▇▇▇▇▇▇▇
▇▇▇▇▇ & Associates, Inc., RBC ▇▇▇▇ ▇▇▇▇▇▇▇▇, UBS Financial Services, Inc.,
and Wachovia Capital Markets, LLC, the undersigned agrees to purchase the
following aggregate principal amount of InterNotes:
$____________
The terms of such Notes shall be as follows:
CUSIP Number: __________
Interest Rate or Method of Determining:
Maturity Date: __________
Price to Public: __________
Agent's Concession: ___%
Net Proceeds to Issuer: $_________
Settlement Date, Time and Place: __________
Survivor's Option: __________
Interest Payment Frequency: __________
Optional Redemption/Repayment, if any: __________
Initial Redemption/Repayment Date[s]: __________
Redemption/Repayment Price: Initially ___% of Principal Amount and declining by
___% of the Principal Amount on each anniversary of the Initial
Redemption/Repayment Date until the Redemption/Repayment Price is 100% of the
Principal Amount.
[Any other terms and conditions agreed to by the Purchasing Agent and the
Company]
INCAPITAL LLC
By:
------------------------------------
Title:
---------------------------------
ACCEPTED
CIT GROUP INC.
By:
---------------------------------
C-1
Title:
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C-2
Exhibit D
Form of Pricing Supplement
Pricing Supplement Dated: _____________ Rule 424(b)(3)
(To Prospectus Supplement Dated ________, File No. 333-119172
2004 and Prospectus Dated October 28, 2004)
Pricing Supplement No. ____________________
U.S. $
CIT GROUP INC.
INTERNOTES'r'
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
--------------------------------------------------------------------------------
Trade Date:
------------------------------
Issue Date:
------------------------------
Joint Lead Managers:
---------------------
Agents:
----------------------------------
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AGGREGATE PRICE NET INTEREST RATE
PRINCIPAL TO PROCEEDS OR INTEREST
CUSIP AMOUNT PUBLIC CONCESSION TO ISSUER RATE BASIS
-------------------------------------------------------------------
-------------------------------------------------------------------
------------------------------------------------------------------------------------------------
INITIAL MAXIMUM MINIMUM
INDEX INTEREST INTEREST INTEREST INTEREST DAY COUNT
SPREAD MATURITY RATE RESET DATES RATE RATE BASIS
(if floating (if floating (if floating (if floating (if floating (if floating (if floating
rate) rate) rate) rate) rate) rate) rate)
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------
INTEREST REDEMPTION OR REDEMPTION/
PAYMENT MATURITY 1st INTEREST SURVIVOR'S REPAYMENT REPAYMENT
FREQUENCY DATE PAYMENT DATE OPTION YES/NO TERMS
------------------------------------------------------------------------------
------------------------------------------------------------------------------
D-1
Other Terms:
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D-2
Exhibit E
Master Selected Dealer Agreement
(FirstName)
(Company)
(Address1)
(Address2)
(City), (State) (Postal)
Dear Selected Dealer:
In connection with public offerings of securities after the date
hereof for which we are acting as manager of an underwriting syndicate or are
otherwise responsible for the distribution of securities to the public by means
of an offering of securities for sale to selected dealers, you may be offered
the right as such a selected dealer to purchase as principal a portion of such
securities. This will confirm our mutual agreement as to the general terms and
conditions applicable to your participation in any such selected dealer group
organized by us as follows.
1. Applicability of this Agreement. The terms and conditions of this
Agreement shall be applicable to any public offering of securities
("Securities"), pursuant to a registration statement filed under the
Securities Act of 1933 (the "1933 Act"), or exempt from registration
thereunder (other than a public offering of Securities effected
wholly outside the United States of America), wherein Incapital LLC
clearing through Pershing, LLC (the "Account") (acting for its own
Account or for the account of any underwriting or similar group or
syndicate) is responsible for managing or otherwise implementing the sale
of the Securities to selected dealers ("Selected Dealers") and has
expressly informed you that such terms and conditions shall be applicable.
Any such offering of Securities to you as a Selected Dealer is hereinafter
called an "Offering". In the case of any Offering where we are acting for
the account of any underwriting or similar group or syndicate
("Underwriters"), the terms and conditions of this Agreement shall be for
the benefit of, and binding upon, such Underwriters, including, in the case
of any Offering where we are acting with others as representatives of
Underwriters, such other representatives.
2. Conditions of Offering; Acceptance and Purchases. Any Offering: (i)
will be subject to delivery of the Securities and their acceptance by us
and any other Underwriters; (ii) may be subject to the approval of all
legal matters by counsel and the satisfaction of other conditions, and
(iii) may be made on the basis of reservation of Securities or an allotment
against subscription. We will advise you by electronic mail, facsimile or
other form of written communication ("Written Communication", which term,
in the case of any Offering described in Section 3(a) or 3(b) hereof, may
include a prospectus or offering circular) of the particular method and
supplementary terms and conditions (including, without limitation, the
information as to prices and offering date referred to in
E-1
Section 3(c) hereof) of any Offering in which you are invited to
participate. To the extent such supplementary terms and conditions are
inconsistent with any provision herein, such terms and conditions shall
supersede any such provision. Unless otherwise indicated in any such
Written Communication, acceptances and other communications by you with
respect to an Offering should be sent to Incapital LLC, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, (Fax: (▇▇▇) ▇▇▇-▇▇▇▇). We reserve
the right to reject any acceptance in whole or in part. Unless notified
otherwise by us, Securities purchased by you shall be paid for on such date
as we shall determine, on one day's prior notice to you, by certified or
official bank check, in an amount equal to the Public Offering Prices
(as hereinafter defined) or, if we shall so advise you, at such Public
Offering Price less the Concession (as hereinafter defined), payable in
New York Clearing House funds to the order of Pershing, LLC clearing
for the account of Incapital LLC, against delivery of the Securities. If
Securities are purchased and paid for at such Public Offering Price, such
Concession will be paid after the termination of the provisions of Section
3(c) hereof with respect to such Securities. Notwithstanding the foregoing,
unless notified otherwise by us, payment for and delivery of Securities
purchased by you shall be made through the facilities of The Depository
Trust Company, if you are a member, unless you have otherwise notified us
prior to the date specified in a Written Communication to you from us or,
if you are not a member, settlement may be made through a correspondent who
is a member pursuant to instructions which you will send to us prior to
such specified date.
3. Representations, Warranties and Agreements.
(a) Registered Offerings. In the case of any Offering of Securities
that are registered under the 1933 Act ("Registered Offering"), we shall provide
you with such number of copies of each preliminary prospectus and of the final
prospectus relating thereto as you may reasonably request for the purposes
contemplated by the 1933 Act and the Securities Exchange Act of 1934 (the "1934
Act") and the applicable rules and regulations of the Securities and Exchange
Commission thereunder. You represent and warrant that you are familiar with Rule
15c2-8 under the 1934 Act relating to the distribution of preliminary and final
prospectuses and agree that you will comply therewith. You agree to make a
record of your distribution of each preliminary prospectus and, when furnished
with copies of any revised preliminary prospectus, you will, upon our request,
promptly forward copies thereof to each person to whom you have theretofore
distributed a preliminary prospectus. You agree that in purchasing Securities in
a Registered Offering you will rely upon no statement whatsoever, written or
oral, other than the statements in the final prospectus delivered to you by us.
You will not be authorized by the issuer or other seller of Securities offered
pursuant to a prospectus or by any Underwriter to give any information or to
make any representation not contained in the prospectus in connection with the
sale of such Securities.
(b) Offerings Pursuant to Offering Circular. In the case of any
Offering of Securities, other than a Registered Offering, which is made pursuant
to an offering circular or other document comparable to a prospectus in a
Registered Offering, we shall provide you with such number of copies of each
preliminary offering circular and of the final offering circular
E-2
relating thereto as you may reasonably request. You agree that you will comply
with the applicable Federal and state laws, and the applicable rules and
regulations of any regulatory body promulgated thereunder, governing the use and
distribution of offering circulars by brokers or dealers. You agree that in
purchasing Securities pursuant to an offering circular you will rely upon no
statements whatsoever, written or oral, other than the statements in the final
offering circular delivered to you by us. You will not be authorized by the
issuer or other seller of Securities offered pursuant to an offering circular or
by any Underwriter to give any information or to make any representation not
contained in the offering circular in connection with the sale of such
Securities.
(c) Offer and Sale to the Public. With respect to any Offering of
Securities, we will inform you by a Written Communication of the public offering
price, the selling concession, the reallowance (if any) to dealers and the time
when you may commence selling Securities to the public. After such public
offering has commenced, we may change the public offering price, the selling
concession and the reallowance to dealers. The offering price, selling
concession and reallowance (if any) to dealers at any time in effect with
respect to an Offering are hereinafter referred to, respectively, as the "Public
Offering Price", the "Concession" and the "Reallowance". With respect to each
Offering of Securities, until the provisions of this Section 3(c) shall be
terminated pursuant to Section 4 hereof, you agree to offer Securities to the
public at no more than the Public Offering Price. If so notified by us, you may
sell Securities to the public at a lesser negotiated price than the Public
Offering Price, but in an amount not to exceed the "Concession". If a
Reallowance is in effect, a reallowance from the Public Offering Price not in
excess of such Reallowance may be allowed as consideration for services rendered
in distribution to dealers who are actually engaged in the investment banking or
securities business, who execute the written agreement prescribed by Rule 2740
of the Conduct Rules of the National Association of Securities Dealers, Inc.
(the "NASD") and who are either members in good standing of the NASD or foreign
banks, dealers or institutions not eligible for membership in the NASD who
represent to you that they will promptly reoffer such Securities at the Public
Offering Price and will abide by the conditions with respect to foreign banks,
dealers and institutions set forth in Section 3(e) hereof.
(d) Over-allotment; Stabilization; Unsold Allotments. We may, with
respect to any Offering, be authorized to over-allot in arranging sales to
Selected Dealers, to purchase and sell Securities for long or short account and
to stabilize or maintain the market price of the Securities. You agree that,
upon our request at any time and from time to time prior to the termination of
the provisions of Section 3(c) hereof with respect to any Offering, you will
report to us the amount of Securities purchased by you pursuant to such Offering
which then remain unsold by you and will, upon our request at any such time,
sell to us for our account or the account of one or more Underwriters such
amount of such unsold Securities as we may designate at the Public Offering
Price less an amount to be determined by us not in excess of the Concession. If,
prior to the later of (i) the termination of the provisions of Section 3(c)
hereof with respect to any Offering or (ii) the covering by us of any short
position created by us in connection with such Offering for our account or the
account of one or more Underwriters, we purchase or contract to purchase for our
account or the account of one or more Underwriters in
E-3
the open market or otherwise any Securities purchased by you under this
Agreement as part of such Offering, you agree to pay us on demand an amount
equal to the Concession with respect to such Securities (unless you shall have
purchased such Securities pursuant to Section 2 hereof at the Public Offering
Price in which case we shall not be obligated to pay such Concession to you
pursuant to Section 2) plus transfer taxes and broker's commissions or dealer's
▇▇▇▇-up, if any, paid in connection with such purchase or contract to purchase.
(e) NASD. You represent and warrant that you are actually engaged in
the investment banking or securities business and either a member in good
standing of the NASD or, if you are not such a member, you are a foreign bank,
dealer or institution not eligible for membership in the NASD which agrees to
make no sales within the United States, its territories or its possessions or to
persons who are citizens thereof or residents therein, and in making other sales
to comply with the applicable rules and regulations of the NASD, including Rule
2790 of the NASD's Conduct Rules. You further represent, by your participation
in an Offering, that you have provided to us all documents and other information
required to be filed with respect to you, any related person or any person
associated with you or any such related person pursuant to the supplementary
requirements of the NASD's interpretation with respect to review of corporate
financing as such requirements relate to such Offering.
You agree that, in connection with any purchase or sale of the
Securities wherein a Concession, discount or other allowance is received or
granted, (1) you will comply with the provisions of Rule 2740 of the NASD's
Conduct Rules and (2) if you are a non-NASD member broker or dealer in a foreign
country, you will also comply (a), as though you were an NASD member, with Rules
2730, 2740, 2750 and 2790 of the NASD's Conduct Rules and (b) with Rule 2420
thereof as that Rule applies to a non-NASD member broker or dealer in a foreign
country.
You further agree that, in connection with any purchase of securities
from us that is not otherwise covered by the terms of this Agreement (whether we
are acting as manager, as a member of an underwriting syndicate or a selling
group or otherwise), if a Concession or other allowance is granted to you,
clauses (1) and (2) of the preceding paragraph will be applicable.
(f) Relationship among Underwriters and Selected Dealers. We may buy
Securities from or sell Securities to any Underwriter or Selected Dealer and,
without consent, the Underwriters (if any) and the Selected Dealers may purchase
Securities from and sell Securities to each other at the Public Offering Price
less all or any part of the Concession. Unless otherwise specified in a separate
agreement between you and us, this agreement does not authorize you to act as
agent for: (i) us; (ii) any Underwriter; (iii) the issuer; or (iv) other seller
of any Securities in offering Securities to the public or otherwise. Neither we
nor any Underwriter shall be under any obligation to you except for obligations
assumed hereby or in any Written Communication from us in connection with any
Offering. Nothing contained herein or in any Written Communication from us shall
constitute the Selected Dealers an association or partners with us or any
Underwriter or with one another. If the Selected Dealers, among themselves or
with the Underwriters, should be deemed to constitute a partnership for Federal
income tax purposes, then you elect to be excluded from the application of
Subchapter K, Chapter 1, Subtitle A of the Internal Revenue Code of 1986 and
agree not to take any position
E-4
inconsistent with that election. You authorize us, in our discretion, to execute
and file on your behalf such evidence of that election as may be required by the
Internal Revenue Service. In connection with any Offering, you shall be liable
for your proportionate amount of any tax, claim, demand or liability that may be
asserted against you alone or against one or more Selected Dealers participating
in such Offering, or against us or the Underwriters, based upon the claim that
the Selected Dealers, or any of them, constitute an association, an
unincorporated business or other entity, including, in each case, your
proportionate amount of any expense incurred in defending against any such tax,
claim, demand or liability.
(g) Blue Sky Laws. Upon application to us, we shall inform you as to
any advice we have received from counsel concerning the jurisdictions in which
Securities have been qualified for sale or are exempt under the securities
or blue sky laws of such jurisdictions, but we do not assume any obligation or
responsibility as to your right to sell Securities in any such jurisdiction.
(h) Compliance with Law. You agree that in selling Securities pursuant
to any Offering (which agreement shall also be for the benefit of the issuer or
other seller of such Securities) you will comply with all applicable laws, rules
and regulations, including the applicable provisions of the 1933 Act and the
1934 Act, the applicable rules and regulations of the Securities and Exchange
Commission thereunder, the applicable provisions of state securities laws,
including the rules and regulations thereunder, the applicable rules and
regulations of the NASD, the applicable rules and regulations of any securities
exchange having jurisdiction over the Offering and the applicable laws, rules
and regulations specified in Section 3(b) hereof.
4. Termination, Supplements and Amendments. This Agreement shall
continue in full force and effect until terminated by a written instrument
executed by each of the parties hereto. This Agreement may be supplemented or
amended by us by written notice thereof to you, and any such supplement or
amendment to this Agreement shall be effective with respect to any Offering to
which this Agreement applies after the date of such supplement or amendment.
Each reference to "this Agreement" herein shall, as appropriate, be to this
Agreement as so amended and supplemented. The terms and conditions set forth in
Section 3(c) hereof with regard to any Offering will terminate at the close of
business on the 30th day after the commencement of the public offering of the
Securities to which such Offering relates, but in our discretion may be extended
by us for a further period not exceeding 30 days and in our discretion, whether
or not extended, may be terminated at any earlier time.
5. Successors and Assigns. This Agreement shall be binding on, and
inure to the benefit of, the parties hereto and other persons specified in
Section 1 hereof, and the respective successors and assigns of each of them.
6. Governing Law. This Agreement and the terms and conditions set
forth herein with respect to any Offering together with such supplementary terms
and conditions with respect to such Offering as may be contained in any Written
Communication from us to you in connection therewith shall be governed by, and
construed in accordance with, the laws of the State of Illinois.
Please confirm by signing and returning to us the enclosed copy of
this Agreement that your subscription to, or your acceptance of any reservation
of, any Securities pursuant to an Offering shall constitute (i) acceptance of
and agreement to the terms and conditions of this Agreement (as supplemented and
amended pursuant to Section 4 hereof) together with and subject to any
supplementary terms and conditions contained in any Written
E-5
Communication from us in connection with such Offering, all of which shall
constitute a binding agreement between you and us, individually or as
representative of any Underwriters, (ii) confirmation that your representations
and warranties set forth in Section 3 hereof are true and correct at that time,
(iii) confirmation that your agreements set forth in Sections 2 and 3 hereof
have been and will be fully performed by you to the extent and at the times
required thereby and (iv) in the case of any Offering described in Section 3(a)
and 3(b) hereof, acknowledgment that you will request and have received from us
sufficient copies of the final prospectus or offering circular, as the case may
be, with respect to such Offering in order to comply with your undertakings in
Section 3(a) or 3(b) hereof.
Very truly yours,
INCAPITAL LLC
By:
--------------------------
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CONFIRMED: , 20
----------------------- ---
(Company)
By:
-------------------------------------
Name:
-----------------------------------
(Print name)
Title:
----------------------------------
E-6
Exhibit F
[Opinion of CIT's General Counsel]
(i) The Company is duly qualified or licensed and in good standing as a
foreign corporation in each jurisdiction where its business requires such
qualification or licensing, except where the failure to be so qualified,
licensed or in good standing would not have a material adverse effect on the
business, operations, assets or financial condition of the Company.
(ii) Each of the Company's subsidiaries that is a "significant subsidiary"
(as such term is defined in Rule 1-02 of Regulation S-X under the Act), is
validly existing, has the corporate power to transact the business in which it
is engaged, is duly qualified and in good standing as a foreign corporation in
each of the several states and jurisdictions where its business requires such
qualifications, where its business requires such licensing and where the failure
to be so qualified or licensed would have a material adverse effect on the
consolidated financial position and results of operations of the Company.
(iii) To my knowledge there are no legal or governmental proceedings
required to be described in the Prospectus which are not described as required,
or any contracts or documents of a character required to be described in the
Registration Statement or Prospectus or to be filed as exhibits to the
Registration Statement which are not described and filed as required.
F-1
Exhibit G
[Opinion of Shearman & Sterling LLP]
(i) The Company is a corporation duly incorporated and validly existing in
good standing under the laws of the State of Delaware with corporate power and
authority under such law to conduct its business as described in the Prospectus.
(ii) The Selling Agent Agreement has been duly authorized, executed and
delivered by the Company.
(iii) The Indenture has been duly authorized, executed and delivered by the
Company and, assuming due authorization, execution and delivery by the
applicable Trustee, constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms.
(iv) When the final terms of the Notes have been duly established and
approved, and when such Notes have been duly authorized and executed by the
Company and duly authenticated by the Trustee in accordance with the terms of
the Indenture, and delivered to and paid for by the purchasers thereof pursuant
to the Selling Agent Agreement, the Notes will constitute valid and binding
obligations of the Company, entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms.
(v) The statements in the Prospectus under the caption "Description of Debt
Securities" and "Description of Notes," insofar as such statements constitute
summaries of legal matters or documents referred to therein, fairly summarize in
all material respects the legal matters or documents referred to therein.
(vi) The Indenture has been duly qualified under the Trust Indenture Act.
(vii) The Registration Statement has been declared effective under the 1933
Act and, to the our knowledge, as of the date hereof, no stop order suspending
the effectiveness of the Registration Statement has been issued under the 1933
Act and no proceedings for such purpose have been initiated or threatened by the
SEC.
(viii) Each of the Registration Statement and the Prospectus (other than
the financial statements and other financial or statistical data contained or
incorporated by reference therein or omitted therefrom and the Trustee's
Statement of Eligibility on Form T-1, as to which we express no opinion)
appears on its face to be appropriately responsive in all material respects to
the requirements of the 1933 Act and the applicable rules and regulations of the
SEC thereunder.
(ix) Each of the documents incorporated by reference in the Prospectus
(other than the financial statements and other financial or statistical data
contained or incorporated by reference therein or omitted therefrom, as to which
we express no opinion), at the time it was filed with the
G-1
SEC, appears on its face to have been appropriately responsive in all material
respects to the requirements of the 1934 Act and the applicable rules and
regulations of the SEC thereunder.
(x) The execution and delivery by the Company of the Selling Agent
Agreement and the Indenture does not, and the performance by the Company of its
obligations thereunder and the consummation of the transactions contemplated
thereby will not, (a) result in a violation of the Company's certificate of
incorporation or by-laws, (b) result in a violation of Generally Applicable Law
or (c) result in a breach of, a default under or the acceleration of (or entitle
any party to accelerate) the maturity of any obligation of the Company under, or
result in or require the creation of any lien upon or security interest in any
property of the Company pursuant to the terms of, any document or contract filed
as an exhibit, pursuant to Items 601(b)(4) or 601(b)(10) of Regulation S-K under
the Act, to the Company's most recently filed annual report on Form 10-K or the
Company's quarterly reports on Form 10-Q for the quarterly periods ended since
the filing date of the Company's most recently filed annual report on Form 10-K.
(xi) The Company is not required to register as an investment company under
the Investment Company Act of 1940, as amended.
(xii) No authorization, approval or other action by, and no notice to or
filing with, any United States federal or New York governmental authority or
regulatory body is required for the due execution, delivery or performance by
the Company of the Selling Agent Agreement and the Indenture, except as have
been obtained and are in full force and effect under the 1933 Act or the Trust
Indenture Act or as may be required under the state securities or blue sky laws
of any jurisdiction in the United States in connection with the offer and sale
of the Notes.
The opinions set forth above in paragraphs (iii) and (iv) are subject to
(a) the effect of any applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally (including
without limitation all laws relating to fraudulent transfers), and (b) the
effect of general principles of equity, including without limitation concepts of
materiality, reasonableness, good faith and fair dealing (regardless of whether
considered in a proceeding in equity or at law).
No facts came to our attention which gave us reason to believe that (i) the
Registration Statement (other than the financial statements and other financial
or statistical data contained or incorporated by reference therein or omitted
therefrom and the Trustee's Statement of Eligibility on Form T-1, as to which
we have not been requested to comment), as of the date such Registration
Statement was declared effective, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or (ii) the Prospectus
(other than the financial statements and other financial or statistical data
contained or incorporated by reference therein or omitted therefrom, as to which
we have not been requested to comment), as of its date and the date hereof,
contained or contains an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
G-2