CIT Group Inc.
Global Medium-Term Notes
Due 9 Months or More From Date of Issue
Global Selling Agency Agreement
January 20, 2006
Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
Banc of America Securities LLC
9 West 57th Street
New York, New York 10019
Barclays Capital Inc.
200 Park Avenue
New York, New York 10166
Bear, Stearns & Co. Inc.
383 Madison Avenue
New York, New York 10179
BNP Paribas Securities Corp.
787 Seventh Avenue
New York, New York 10019
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Credit Suisse Securities (USA) LLC
11 Madison Avenue
New York, New York 10010
Deutsche Bank Securities Inc.
60 Wall Street
New York, New York 10005
Goldman, Sachs & Co.
85 Broad St.
New York, New York 10004
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HSBC Securities (USA) Inc.
452 Fifth Avenue
New York, New York 10018
J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
LaSalle Financial Services, Inc.
55 East 52nd Street
New York, New York 10055
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
4 World Financial Center, 15th Floor
New York, New York 10080
Morgan Stanley & Co. Incorporated
1585 Broadway, 4th Floor
New York, New York 10036
UBS Securities LLC
677 Washington Boulevard
Stamford, Connecticut 06901
Wachovia Capital Markets, LLC
301 South College Street
Charlotte, North Carolina 28288-0602
Ladies and Gentlemen:
CIT Group Inc., a Delaware corporation, (the "Company"), confirms
its agreement with each of you (individually, an "Agent", and
collectively, the
"Agents") with respect to the issue and sale by the Company of its
Medium-Term
Senior Notes, Series A, Due 9 Months or More from Date of Issue
(the "Senior
Notes") and its Medium-Term Subordinated Notes, Series A, Due 9
Months or More
from Date of Issue (the "Subordinated Notes") (the Senior Notes and
the
Subordinated Notes are referred to collectively herein as the
"Notes"). The
Senior Notes will be issued under an indenture described on
Schedule I attached
hereto (as may be amended or supplemented from time to time, the
"Senior
Indenture"), between the Company and the trustee described on such
Schedule (the
"Senior Trustee") and pursuant to resolutions of the Board of
Directors of the
Company, or a committee thereof, or supplemental indentures, if
any, as provided
in Section 3.1 of the Senior Indenture. The Company may change or
add trustees
to Schedule I with the consent of the Agents, which consent shall
not be
unreasonably withheld. The Subordinated Notes will be issued under
an indenture
described on Schedule I attached hereto (as may be amended or
supplemented from
time to time, the "Subordinated Indenture"), between the Company
and the trustee
described on such Schedule (the "Subordinated Trustee") and
pursuant to
resolutions of the Board of Directors of the Company, or a
committee thereof, as
provided in Section 3.1 of the Subordinated Indenture. The Senior
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Indenture and the Subordinated Indenture are collectively referred
to herein as
the "Indentures." The Senior Trustee and the Subordinated Trustee
are each
referred to herein as a "Trustee." The Notes will be in fully
registered form
and will be, in the case of Notes denominated in currencies or
currency units
other than U.S. dollars (the "Foreign Currency Notes"), represented
by one or
more global Notes or, in the case of all other Notes (the "Dollar
Denominated
Notes"), represented by one or more global Notes registered in the
name of and
delivered to The Depository Trust Company ("DTC") or its nominee
and recorded in
the book-entry system maintained by DTC. The Notes will be in a
minimum
denomination of U.S. $1,000 and integral multiples of U.S. $1,000
in excess
thereof, or, in the case of Foreign Currency Notes, in the
denominations
indicated in a Term Sheet (as defined below) and/or in a pricing
supplement (the
"Pricing Supplement") to the Prospectus referred to below. The
Notes will have
the maturities, priority, annual interest rates (whether fixed or
floating), if
any, or original issue discount, if any, redemption or repayment
provisions, if
any, currency or currency unit of denomination, and other terms set
forth in the
Pricing Supplement. The Notes will be issued, and the terms thereof
established,
in accordance with the applicable Indenture and the Global
Medium-Term Note
Administrative Procedures attached hereto as Exhibit I (the
"Procedures"). The
Procedures may only be amended by written agreement of the Company
and each
Agent after notice to and, in the case of amendments which affect
the rights,
duties or obligations of a Trustee, a registrar, a paying agent, an
authenticating agent or an exchange rate agent, with the approval
of, such
Trustee, registrar, paying agent, authenticating agent, or exchange
rate agent,
as the case may be.
1. Representations and Warranties of the Company The Company
represents and warrants to, and agrees with, each Agent that:
(a) Registration statement No. 333-131159 has been filed with the
Securities and Exchange Commission (the "Commission"). On or prior
to the
date hereof, a prospectus supplement relating to the Notes has been
filed
as a part of the Registration Statement (defined below), if
applicable, or
pursuant to Rule 424(b) under the Securities Act of 1933, as
amended (the
"Act"). As used in this Agreement, "Registration Statement" means
registration statement No. 333-131159 (and any further registration
statements which may be filed by the Company for the purpose of
registering Notes and in connection with which this Agreement is
included
or incorporated by reference as an exhibit), as amended at the date
of
this Agreement and in the form in which it has most recently been
filed,
or transmitted for filing at or prior to the Time of Sale (as
defined
below) with the Commission and "Prospectus" means the prospectus
relating
to the Notes included in the Registration Statement, the prospectus
supplement relating to the Notes heretofore filed with the
Commission and
any Pricing Supplement relating to the Notes in the form in which
it has
most recently been filed, or transmitted for filing with the
Commission at
or prior to the Time of Sale, that has not been superseded or
modified, in
each case including all material incorporated by reference therein.
The
Company proposes to file with the Commission from time to time,
pursuant
to Rule 424(b) under the Act, Pricing Supplements to the Prospectus
which
will describe certain pricing terms of the Notes and, as further
set forth
herein, prior to any such filing will advise you of all information
to be
set forth therein.
(b) (i) At the time of filing the Registration Statement, (ii) at
the time of the most recent amendment thereto for the purposes of
complying with Section 10(a)(3) of the Act
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(whether such amendment was by post-effective amendment,
incorporated
report filed pursuant to Section 13 or 15(d) of the Securities
Exchange
Act of 1934, as amended (the "Exchange Act") or form of
prospectus), and
(iii) at the time the Company or any person acting on its behalf
(within
the meaning, for this clause only, of Rule 163(c)) under the Act
made any
offer relating to the Notes in reliance on the exemption of Rule
163, the
Company was a "well-known seasoned issuer" as defined in Rule 405
under
the Act, including not having been an "ineligible issuer" as
defined in
Rule 405.
The Registration Statement is an "automatic shelf registration
statement," as defined in Rule 405, that initially became effective
within
three years of the date of this Agreement.
The Company has not received from the Commission any notice
pursuant
to Rule 401(g)(2) under the Act objecting to use of the automatic
shelf
registration statement form.
(c) On the date the Registration Statement became effective, the
Registration Statement and the Prospectus (i) conformed in all
respects to
the applicable requirements of the Act, the Trust Indenture Act of
1939,
as amended (the "Trust Indenture Act"), and the applicable rules
and
regulations of the Commission promulgated pursuant to the Act, the
Trust
Indenture Act or the Exchange Act, as the case may be (the "Rules
and
Regulations"), and (ii) did not include any untrue statement of a
material
fact or omit to state any material fact required to be stated
therein or
necessary to make the statements therein not misleading. On the
date of
this Agreement, the Registration Statement and the Prospectus
conform, and
when any supplement to the Prospectus is filed with the Commission
and at
the date of delivery by the Company of any Notes sold hereunder,
the
Registration Statement and the Prospectus and any supplement
thereto will
conform, in all respects to the applicable requirements of the Act,
the
Trust Indenture Act and the applicable Rules and Regulations
thereunder,
and neither the Registration Statement nor the Prospectus includes,
or
will include as of any such time, any untrue statement of a
material fact
or omits or will omit to state any material fact required to be
stated
therein or necessary to make the statements therein not misleading;
provided, however, this representation and warranty shall not apply
to any
statement or omission made in reliance upon and in conformity with,
written information furnished to the Company by an Agent
specifically for
use in the Registration Statement or Prospectus or to that part of
the
Registration Statement which shall constitute the Statement of
Eligibility
under the Trust Indenture Act (Form T-1) of the Trustee under the
Indenture.
(d) The documents incorporated by reference in the Prospectus, when
they were filed with the Commission, conformed in all material
respects to
the requirements of the Exchange 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
Commission, will conform in all material respects to the applicable
requirements of the Exchange Act and the Rules and Regulations
thereunder,
and will not contain an untrue statement of a material fact or
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omit to state a material fact required to be stated therein or
necessary
to make the statements therein not misleading.
(e) As of the applicable Time of Sale, the Term Sheet (as defined
below), any Alternative Issuer Free Writing Prospectus (as defined
below),
the prospectus relating to the Notes included in the Registration
Statement and the prospectus supplement relating to the Notes
heretofore
filed with the Commission, all considered together (the "General
Disclosure Package") did not include any untrue statement of a
material
fact or omit to state any material fact necessary in order to make
the
statements therein, in the light of the circumstances under which
they
were made, not misleading. The preceding sentence does not apply to
statements in or omissions from the General Disclosure Package
based upon
and in conformity with written information furnished to the Company
by any
Agent specifically for use therein.
(f) (i) At the earliest time after the filing of the Registration
Statement that the Company or another offering participant made a
bona
fide offer (within the meaning of Rule 164(h)(2) under the Act) of
the
Notes and (ii) at the date hereof, the Company was not and is not
an
"ineligible issuer" as defined in Rule 405.
2. Solicitations by the Agent of Offers to Purchase; Purchases as
Principal; Additional Agents; Marketing Materials
(a) Subject to the terms and conditions set forth herein, the
Company hereby authorizes each Agent to act as its agent to solicit
offers for
the purchase of all or any part of the Notes, upon the terms set
forth in the
Prospectus, as it may be amended or supplemented from time to time
pursuant to
this Agreement, during the period beginning on the date hereof and
ending on the
date the Company shall specify to the Agent in writing. On the
basis of the
representations and warranties herein contained, but subject to the
terms and
conditions herein set forth, each of the Agents agrees, as agent of
the Company,
to use its reasonable best efforts to solicit offers to purchase
the Notes upon
the terms and conditions set forth in the Prospectus as then
amended or
supplemented. The Company reserves the right, in its sole
discretion, (i) to
sell the Notes on its own behalf directly to investors in those
jurisdictions
where it is authorized to do so or indirectly to investors through
other agents,
(ii) to sell the Notes to other agents acting as principal and
(iii) to suspend
solicitation of purchases of the Notes commencing at any time for
any period of
time or permanently. Upon receipt of written instructions from the
Company, an
Agent will forthwith suspend solicitation of offers to purchase the
Notes until
such time as the Company has advised it that such solicitation may
be resumed.
Unless otherwise agreed between the Company and such Agent, the
Company agrees to pay each Agent, as consideration for soliciting
the sale of
any Notes, a commission in U.S. dollars, at the time of settlement
of each sale
of Notes by the Company as a result of a solicitation made by such
Agent in an
amount equal to the following percentages of the principal amount
of each Note
placed by such Agent:
Term
Commission Rate %
----
-----------------
9 months to less than 1 yr.
.05
1 yr. to less than 18 months
.05
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18 months to less than 2 yrs.
.05
2 yrs. to less than 3 yrs.
.10
3 yrs. to less than 4 yrs.
.15
4 yrs. to less than 5 yrs.
.25
5 yrs. to less than 6 yrs.
.35
6 yrs. to less than 7 yrs.
.375
7 yrs. to less than 10 yrs.
.40
10 yrs. to less than 15 yrs.
.45
15 yrs. to less than 20 yrs.
.50
20 yrs. up to and including 30 yrs.
.750
More than 30 yrs.
To be negotiated at
time of issuance
The Agents are authorized to solicit offers to purchase the Notes
only in the denominations indicated in the applicable Term Sheet or
Pricing
Supplement to the Prospectus.
Each Agent shall communicate to the Company, orally or in writing,
each offer received by it to purchase Notes other than those
reasonably rejected
by it as provided below. The Company shall have the sole right to
accept offers
to purchase the Notes and may reject any such offer in whole or in
part. Each
Agent shall have the right to reject, in its discretion reasonably
exercised,
any offer received by it to purchase the Notes in whole or in part,
and any such
rejection shall not be deemed a breach of its agreements contained
herein.
Unless otherwise agreed between the Agents and the Company, the
Agents and the
Company agree to perform the respective duties and obligations
specifically
provided to be performed by them in the Procedures.
(b) Subject to the terms and conditions stated herein, the Company
agrees that, whenever the Company determines to sell Notes directly
to any Agent
as principal for its own account or for resale to others, it will
enter into a
separate supplemental agreement relating to such sale in accordance
with the
provisions of this Section 2(b) and for the purposes of this
Agreement, (i) the
term "Agent" shall refer to each of you acting solely in the
capacity as agent
for the Company hereunder and not as principal; (ii) the term
"Purchaser" shall
refer to each of you acting solely as principal hereunder and not
as agent; and
(iii) the term "you" or "your" shall refer to each of you acting in
both such
capacities or in either such capacity. Any Purchaser may utilize a
selling or
dealer group in connection with the resale of the Notes and may
reallow any
portion of its commission.
Each sale of Notes to a Purchaser shall be made in accordance with
the terms of this Agreement and the Procedures and a supplemental
agreement
which will provide for the sale of such Notes to, and the purchase
and
reoffering thereof by, a Purchaser. Each supplemental agreement
(which may be
substantially in the form of Exhibit B hereto) is herein referred
to as a "Terms
Agreement". Unless the context otherwise requires, each reference
contained
herein to "this Agreement" shall be deemed to include any
applicable Terms
Agreement between the Company and the Purchaser. Each such Terms
Agreement,
shall be with respect to such information (as applicable) as is
specified in
Exhibit B hereto. Unless and until a Terms Agreement has been
validly entered
into as described above with regard to an issuance of Notes, an
Agent purchasing
such Notes shall be deemed to be acting as Agent and not as
Purchaser with
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regard to such issuance. The Purchaser's commitment to purchase
Notes as
principal pursuant to any Terms Agreement shall be deemed to have
been made on
the basis of the representations, warranties, covenants and
agreements of the
Company herein contained and shall be subject to the terms and
conditions set
forth in this Agreement and any further terms and conditions set
forth in such
Terms Agreement. Each Terms Agreement shall specify the principal
amount of
Notes to be purchased by the Purchaser pursuant thereto, the price
to be paid to
the Company for such Notes, the currency or currency unit in which
such Notes
shall be denominated, the rate at which interest, if any, will be
paid on the
Notes (and whether such rate of interest shall be fixed or
floating), the time
the Company and the Purchaser have agreed is immediately prior to
or at the time
when sales of such Notes will first be confirmed orally or in
writing (the "Time
of Sale"), the date of delivery of and payment for such Notes (the
"Purchase
Date"), and such other provisions (including further terms of the
Notes) as may
be mutually agreed upon. Each such Terms Agreement shall also
specify the
requirements for the opinions of counsel and the certificate of the
Company or
its officers pursuant to Sections 4(d) and 4(f) hereof and the
requirements, if
any, for the letter(s) from the Company's independent registered
public
accounting firm pursuant to Section 4(c) hereof. In addition, each
such Terms
Agreement shall also specify whether such Notes are to be listed on
any stock
exchange.
Delivery of the certificates for Notes sold to a Purchaser pursuant
to any Terms Agreement shall be made as agreed to between the
Company and the
Purchaser as set forth in the respective Terms Agreement, not later
than the
Purchase Date set forth in such Terms Agreement, against payment of
immediately
available funds to the Company in the net amount due to the Company
for such
Notes by the method and in the form set forth in the respective
Terms Agreement.
(c) The documents required to be delivered by Section 4 hereof
shall
be delivered to the office of Wilmer Cutler Pickering Hale and Dorr
LLP, counsel
for the Agents, at 2445 M Street, N.W., Washington, DC 20037 on the
date hereof,
or such other places as the parties may agree.
(d) The Company, without the consent of the Agents, may appoint
additional firms or corporations to become Agents hereunder and
within the
meaning of this Agreement upon the execution by the Company and
each such firm
or corporation of an agreement to the effect that such firm or
corporation shall
have all the rights and obligations of an Agent hereunder.
(e) Each Agent agrees that it will comply with and make the
representations and warranties in accordance with the provisions
set forth in
Schedule S hereof, provided that (i) such provisions may be
supplemented or
modified by the agreement of the Company and the relevant Agent in
relation to a
specific issue of Notes as set forth in the relevant Pricing
Supplement and (ii)
such provisions shall not apply if the relevant law or regulation
in the
relevant jurisdiction no longer applies and has not been replaced
or modified by
any different law or regulation.
(f) (i) Each Term Sheet and each Alternative Issuer Free Writing
Prospectus, as of its issue date and at all subsequent times
through the
completion of the public offer and sale of the Notes to which such
Term Sheet or
Alterative Issuer Free Writing Prospectus relates or until
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any earlier date that the Company notified or notifies the Agents
as described
in the next sentence, did not, does not and will not include any
information
that conflicted, conflicts or will conflict with the information
contained in
the Registration Statement relating to the Notes, including any
document
incorporated by reference therein and any prospectus supplement
deemed to be a
part thereof that has not been superseded or modified. If at any
time from the
issuance of a Term Sheet or Alternative Issuer Free Writing
Prospectus to the
completion of the distribution of the Notes there occurred or
occurs an event or
development as a result of which such Term Sheet or Alternative
Issuer Free
Writing Prospectus conflicted or would conflict with the
information contained
in the Registration Statement relating to the Notes, the Company
has promptly
notified or will promptly notify the Agents and has promptly
amended or will
promptly amend or supplement, at its own expense, such Term Sheet
or Alternative
Issuer Free Writing Prospectus to eliminate or correct such
conflict. The
foregoing two sentences do not apply to statements in or omissions
from any Term
Sheet or Alternative Issuer Free Writing Prospectus based upon and
in conformity
with written information furnished to the Company by any Agent
specifically for
use therein. "Term Sheet" means a term sheet with respect to the
final terms of
the Notes substantially in the form of Exhibit C-1 or Exhibit C-2.
"Alternative
Issuer Free Writing Prospectus" means any "issuer free writing
prospectus," as
defined in Rule 433 under the Act (other than the Term Sheet),
relating to the
Notes that the Company and the Agents have agreed to, prior to the
use thereof,
in writing pursuant to Section 2(f)(ii) in the form filed or
required to be
filed with the Commission or, if not required to be filed, in the
form retained
in the Company's records pursuant to Rule 433(g).
(ii) The Company represents and agrees that, unless it obtains the
prior consent of the applicable Agents, it has not made and will
not make any
offer relating to the Notes that would constitute an "issuer free
writing
prospectus," as defined in Rule 433, or that would otherwise
constitute a "free
writing prospectus," as defined in Rule 405, required to be filed
with the
Commission, and each relevant Agent represents and warrants to, and
agrees with,
the Company and each other relevant Agent that, unless it obtains
the prior
consent of the Company and the Agents, it has not made and will not
make any
offer relating to the Notes that would constitute a "free writing
prospectus" as
defined in Rule 405 (except as provided below); provided that,
prior to the use
thereof, and the filing thereof, the prior consent of the Company
and Agents
shall be deemed to have been given in respect of any Term Sheet or
Alternative
Issuer Free Writing Prospectus attached as a schedule to any
applicable Terms
Agreement. Any such Term Sheet, or in the case of an Alternative
Issuer Free
Writing Prospectus that the Company and the Agents have agreed in
writing to
use, prior to the use thereof, is hereinafter referred to as a
"Permitted Free
Writing Prospectus." The Company represents that it has treated or
agrees that
it will treat each Permitted Free Writing Prospectus as an "issuer
free writing
prospectus," as defined in Rule 433, and has complied and will
comply with the
requirements of Rule 433 applicable to any Permitted Free Writing
Prospectus,
including timely Commission filing where required, legending and
record keeping.
The Company consents to the use by any Agent of a free writing
prospectus that
contains only (i) information describing the preliminary terms of
the Notes or
their offering or (ii) information that describes the final terms
of the Notes
or their offering and that is included in the final Term Sheet of
the Company
contemplated by Section 3(m).
3. Covenants of the Company The Company covenants and agrees with
each Agent that it will deliver to counsel for the Agents one
signed copy of the
Registration Statement
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relating to the Notes, including all exhibits, in the form it
became effective
and of all amendments thereto and that:
(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 Notes, and in any case, prior to the
termination of the offering of the Notes pursuant to this
Agreement, will
provide such Agent with a reasonable opportunity to comment thereon
and
will advise such Agent promptly of (x) the institution by the
Commission
of any stop order proceedings in respect of the Registration
Statement or
of any part thereof or the additional registration statement or (y)
receipt from the Commission of any notice of objection to the use
of the
Registration Statement or any post-effective amendment thereto
pursuant to
Rule 401(g)(2) under the Act by the Company and will use its best
efforts
to prevent the issuance of any such stop order or notice of
objection and
to obtain as soon as possible the withdrawal of such stop order or
notice
of objection, if issued. If the termination of the offering of the
Notes
pursuant to this Agreement has not occurred prior to the third
anniversary
(the "Renewal Deadline") of the initial effective date of the
Registration
Statement, the Company will prior to the Renewal Deadline file, if
it has
not already done so and is eligible to do so, a new automatic shelf
registration statement relating to the Notes. If the Company is no
longer
eligible to file an automatic shelf registration statement, the
Company
will prior to the Renewal Deadline, if it has not already done so,
file a
new shelf registration statement relating to the Notes, and will
use its
reasonable efforts to cause such registration statement to be
declared
effective within 180 days after the Renewal Deadline. The Company
will use
its reasonable efforts to permit the public offering and sale of
the Notes
to continue as contemplated in the expired registration statement
relating
to the Notes. If the Company receives from the Commission a notice
pursuant to Rule 401(g)(2) or otherwise ceases to be eligible to
use the
automatic shelf registration statement form, the Company will (i)
promptly
notify the Agents, (ii) promptly file a new registration statement
or
post-effective amendment on the proper form relating to the Notes,
(iii)
use its reasonable efforts to cause such registration statement or
post-effective amendment to be declared effective as soon as
practicable,
and (iv) promptly notify the Agents of such effectiveness. The
Company
will use its reasonable efforts to permit the public offering and
sale of
the Notes to continue as contemplated in the registration statement
that
was the subject of the Rule 401(g)(2) notice or for which the
Company has
otherwise become ineligible. The Company will promptly advise each
Agent
(i) when each supplement to the Prospectus shall have been filed
with the
Commission pursuant to Rule 424(b), (ii) when any amendment of the
Registration Statement or the additional registration statement
shall have
been filed and become effective, (iii) when any Term Sheet or
Alternative
Issuer Free Writing Prospectus shall have been filed with the
Commission
pursuant to Rule 433, (iv) of any request by the Commission for any
amendment of the Registration Statement or amendment of or
supplement to
the Prospectus or for any additional information, and (v) 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.
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(b) If, at any time when a Prospectus relating to the Notes is
required to be delivered under the 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 Act, the Company promptly will
(i)
notify each Agent to suspend the solicitation of offers to purchase
the
Notes and (ii) prepare and file with the Commission an amendment or
supplement which will correct such statement or omission or an
amendment
which will effect such compliance.
(c) The Company will file such reports pursuant to the Exchange Act
and the Rules and Regulations thereunder, as are necessary in order
to
make generally available to its security holders as soon as
practicable an
earning statement within the meaning of Rule 158 under the Act for
the
purposes of, and to provide the benefits contemplated by the last
paragraph of Section 11(a) of the Act.
(d) The Company will furnish each Agent with copies of the
Registration Statement, including 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
solicitations
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) The Company covenants and agrees with each Agent that the
Company will pay or cause to be paid the following: (i) the fees
and
expenses of the Company's counsel and accountants in connection
with the
registration of the Notes under the Act and all other expenses in
connection with the registration of the Notes under the Act and all
other
expenses in connection with the preparation, printing and filing of
the
Registration Statement, any preliminary prospectus, any Term Sheet
or
Alternative Issuer Free Writing Prospectus, the Prospectus and any
Pricing
Supplement and all other amendments and supplements thereto and the
mailing and delivering of copies thereof to such Agent; (ii) all
reasonable and necessary fees and expenses of counsel for the
Agents in
connection with any issuance of the Notes to investors through each
such
Agent, which fees and expenses are incurred subsequent to the date
hereof,
unless otherwise agreed to between the Company and the Agents;
(iii) all
expenses in connection with the qualification of the Notes for
offering
and sale under state securities laws as provided in
-10-
Section 3(e) hereof, including fees and disbursements in connection
with
such qualification and in connection with "blue sky" and "blue sky"
surveys; (iv) any fees charged by securities rating services for
rating
the Notes; (v) any filing fees incident to any required review by
the
National Association of Securities Dealers, Inc. of the terms of
the sale
of the Notes; (vi) the cost of preparing the Notes; (vii) any
advertising
connected with the solicitation of offers to purchase and the sale
of
Notes so long as such advertising expenses have been approved by
the
Company; (viii) the cost of providing any CUSIP, ISIN, common code
or
other identification numbers for the Notes; and (ix) all other
costs and
expenses incident to the performance of the Company's obligations
hereunder which are not otherwise specifically provided for in this
paragraph. Except as provided in Section 5 hereof, each Agent shall
pay
all other expenses it incurs.
(g) Each time the Registration Statement or the Prospectus is
amended or supplemented, including by the filing with the
Commission 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) 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 Act, (iii) providing solely for the specification of the
terms
of the Notes (excluding (a) any change in the formula by which
interest
rates on the Notes may be determined and (b) any information
relating to
Specified Currencies (as defined in the Prospectus) other than U.S.
dollars), or (iv) occurring due to incorporation by reference of a
Form
10-Q or Form 10-K of the Company), 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 4(f) hereof that was last furnished to the Agents
(either
pursuant to Section 4(f) hereof or pursuant to this Section 3(g))
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 Commission 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 4(f) 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 Commission 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.
-11-
(h) Each time the Registration Statement or the Prospectus is
amended or supplemented, including by the filing with the
Commission 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 Robert
J.
Ingato, 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)
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 Act
(iii)
providing solely for the specification of the terms of the Notes
(excluding (a) any change in the formula by which interest rates on
the
Notes may be determined and (b) any information relating to
Specified
Currencies other than U.S. dollars), or (iv) occurring due to
incorporation by reference of a Form 10-Q or Form 10-K of the
Company. 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 of the opinions referred to in Section
4(d)
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)).
(i) 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 in the Registration Statement or the Prospectus, the
Company
shall, upon request by an Agent, unless a letter is otherwise
furnished
pursuant to Section 3(o) 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 4(c) hereof with such changes
as may
be necessary to reflect the amended and supplemental financial
information
included or incorporated by reference in the Registration Statement
and
the Prospectus, as amended or supplemented to the date of such
letter.
(j) 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
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Statement, the Prospectus nor the General Disclosure Package, as
then
amended or supplemented, includes any untrue statement of a
material fact,
or omits to state any material fact necessary to make the
statements
therein, in the light of the circumstances under which they were
made, not
misleading.
(k) During the period from the date of any Terms Agreement with
regard to a sale of Notes in aggregate amount of not less than $50
million
to a Purchaser and continuing to and including the Purchase Date
for such
Notes, the Company will not offer, sell, contract to sell or
otherwise
dispose of debt securities of the Company in the United States
which are
substantially similar to such Notes, without the prior written
consent of
the Purchaser.
(l) The Company, during the period when the Prospectus is required
to be delivered under the Act, will file promptly all documents
required
to be filed with the Commission pursuant to Sections 13(a), 13(c),
14 or
15(d) of the Exchange Act.
(m) The Company will prepare with respect to any Notes to be sold
through or to the Agents pursuant to this Agreement, a final Term
Sheet,
containing solely a description of the Notes, substantially in the
form of
Exhibit C-1 or Exhibit C-2 hereto and approved by the Agents and
will file
such Term Sheet and, if agreed to in writing by the Company and the
Agents, any Alternative Issuer Free Writing Prospectus pursuant to
Rule
433(d) under the Act within the time period prescribed by such
Rule.
(n) The Company will prepare, with respect to any Notes to be sold
through or to the Agents pursuant to this Agreement, a Pricing
Supplement
with respect to such Notes in a form previously approved by the
Agents and
will timely file such Pricing Supplement pursuant to Rule 424(b)
under the
Act.
(o) The Company will pay the required Commission filing fees
relating to the Notes within the time required by Rule 456(b)(1)
under the
Act without regard to the proviso therein and otherwise in
accordance with
Rules 456(b) and 457(r) under the Act.
(p) If required by Rule 430B(h) under the Act, the Company will
prepare and file a prospectus pursuant to Rule 424(b) under the Act
not
later than may be required by such Rule; provided, however that to
the
extent such prospectus names one or more Agents, the Company will
not file
such prospectus without the prior approval of the Agents which
consent
shall not be unreasonably withheld.
(q) The Company, in relation to any Notes that are to be listed on
any stock exchange 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.
(r) The Company will make available to each Agent as soon as
practicable, but not later than 60 days after the close of each of
the
first three fiscal quarters of each fiscal
-13-
year of the Company and 135 days after the close of each fiscal
year of
the Company, each of the following, each of which shall be dated as
of the
date of the close of such fiscal quarter or fiscal year a letter of
the
Company's independent registered public accounting firm,
substantially in
the form of the letter referred to in Section 4(c). If requested by
any
Agent, the Company will make available to each Agent as soon as
practicable, not later than 60 days after the close of each of the
first
three fiscal quarters of each fiscal year of the Company or 135
days after
the close of each fiscal year of the Company: (i) the written
opinion or
opinions of Robert J. Ingato, General Counsel of the Company, and
Shearman
& Sterling LLP, or other counsel of the Company reasonably
satisfactory to
the Agents, in form satisfactory to the Agents, substantially in
the form
of the opinions referred to in Section 4(d) (which opinions may be
in the
form of a confirmation that the opinions delivered the date hereof
pursuant to Section 4(d) remain in effect without modification) and
(ii) a
certificate of the principal financial or accounting officer of the
Company substantially in the form of the certificate referred to in
Section 4(f).
4. Conditions of the Obligations of the Agents The obligations of
any Agent, as agent of the Company, at any time to solicit offers
to purchase
the Notes, and the obligation of any Agent to purchase Notes as a
Purchaser
pursuant to any Terms Agreement, will be subject to the accuracy,
as of the date
hereof, as of the date of the effectiveness of any amendment to the
Registration
Statement (including the filing of any document incorporated by
reference into
the Prospectus), as of the date any supplement to the Prospectus is
filed with
the Commission, as of the Time of Sale and as of the time of
delivery of Notes
to any purchaser or to the Agents as Purchaser, of the
representations and
warranties on the part of the Company herein (and, in the case of
an obligation
of an Agent under a Terms Agreement, in or incorporated in such
Terms Agreement
by reference), to the accuracy of the statements of Company
officers made
pursuant to the provisions hereof, to the performance by the
Company of its
obligations hereunder and to the following additional conditions
precedent
(other than the conditions specified in clauses (w), (x), (y) and
(z) of
paragraph (b)(ii) below, which are conditions precedent to, and
only to, the
obligations of an Agent to purchase Notes as a Purchaser pursuant
to a Terms
Agreement):
(a) The Prospectus as amended or supplemented in relation to the
Notes shall have been filed with the Commission pursuant to Rule
424(b)
under the Act within the applicable time period prescribed for such
filing
by the rules and regulations under the Act and in accordance with
Section
3(n) hereof; any final Term Sheet or Alternative Issuer Free
Writing
Prospectus contemplated by Section 3(m) hereof, and any other
material
required to be filed by the Company pursuant to Rule 433(d) under
the Act,
shall have been filed with the Commission within the applicable
time
periods prescribed for such filings by Rule 433; 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 or such Agent, shall
be
contemplated by the Commission; and no notice of objection of the
Commission to the use of the Registration Statement or any
post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Act shall
have been
received by the Company; and all requests for additional
information on
the part of the Commission shall have been complied with to the
Agents'
reasonable satisfaction.
-14-
(b) (i) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus or the
Time of
Sale with respect to any Note or, if applicable, the date of any
Terms
Agreement, there shall not have occurred 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 reasonable judgment of
such
Agent (which, in the case of any syndicated offering, shall be the
lead
manager(s)), 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 as contemplated by the Registration Statement
and the
Prospectus; and (ii) subsequent to the sale date with respect to
any Note
or, if applicable, the date of any Terms Agreement, (v) 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, by Moody's
Investors
Service, Standard & Poor's Ratings Services or Fitch, Inc., (w)
trading of
securities generally on the New York Stock Exchange or the National
Association of Securities Dealers Automated Quotations System, or
any
exchange on which the Notes may be listed, shall not have been
suspended
or materially limited, (x) a general moratorium on commercial
banking
activities shall not have been declared by either federal or state
authorities, or if a material disruption in commercial banking or
securities settlement or clearance services in the United States
has
occurred, (y) trading of any securities of the Company shall not
have been
suspended on any exchange or in any over-the-counter market and (z)
there
shall not have occurred any outbreak or escalation of hostilities
or
national emergency or other calamity or crisis the effect of which
on the
financial markets of the United States is, in the judgment of such
Agent
(which, in the case of any syndicated offering, shall be the lead
manager(s)), such as to make it impracticable or inadvisable to
market the
Notes.
(c) Such Agent shall have received a letter, dated as of the date
hereof, and in connection with its purchase of Notes as a Purchaser
pursuant to a Terms Agreement, dated as of the Purchase Date, of
the
Company's independent registered public accounting firm, confirming
that
they are an independent registered public accounting firm within
the
meaning of the Act and the published Rules and Regulations and to
the
effect that (i) in their opinion, the financial statements and
financial
schedules examined by them and included in the Prospectus comply in
form
in all material respects with the applicable accounting
requirements of
the Act, the Exchange Act and the related published 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 the Prospectus do not comply in
form in
all material respects with the applicable accounting requirements
of the
Exchange 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
the
Prospectus, or (x) with respect to the period after the date of the
most
-15-
recent financial statements incorporated in the Registration
Statement and
the Prospectus, there were any changes, when compared to the most
recent
internal balance sheet, in the capital stock or increase in total
debt of
the Company or any decreases in the consolidated total assets,
finance
receivables, reserve for credit losses or shareholders' equity of
the
Company as compared with the amounts shown on the most recent
consolidated
balance sheet included or incorporated in the Registration
Statement and
the Prospectus, or (y) with respect to the period after the date of
the
most recent financial statements included or incorporated in 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 were any
changes in
the capital stock or increase in total debt of the Company or any
decrease
in the consolidated total assets, finance receivables, reserve for
credit
losses or shareholders' equity of the Company as compared with the
amounts
shown on the most recent consolidated balance sheet included or
incorporated in 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 incorporated in the
Registration Statement and the Prospectus to such specified date
there
were any quantifiable decreases, as compared with the corresponding
period
in the preceding year, in consolidated 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 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
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
on 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.
All
financial statements included in material incorporated by reference
into
the Prospectus shall be deemed included in the Prospectus for
purposes of
this subsection.
(d) Such Agent shall have received an opinion of Shearman &
Sterling
LLP (or other counsel of the Company reasonably satisfactory to
such
Agent) and of Robert J. Ingato, General Counsel of the Company,
each dated
as of the date hereof, the form of which is attached hereto as
Exhibit A-1
and Exhibit A-2, respectively, and in connection with its purchase
of
Notes as a Purchaser pursuant to a Terms Agreement, dated as of the
Purchase Date, of Robert J. Ingato, General Counsel of the Company,
the
form of which is attached hereto as Exhibit A-2 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 A-3.
-16-
(e) The Agents shall have received from Wilmer Cutler Pickering
Hale
and Dorr LLP, counsel for the Agents, such opinion or opinions,
dated as
of the date hereof, and in connection with its purchase of Notes as
a
Purchaser pursuant to a Terms Agreement, dated as of the Purchase
Date,
with respect to the Indentures, 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.
(f) Such Agent shall have received a certificate, dated as of the
date hereof, and in connection with its purchase of Notes as a
Purchaser
pursuant to a Terms Agreement, a certificate dated as of the
Purchase Date
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 of such
certificate,
(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, (iii) that no stop order suspending the effectiveness of
the
Registration Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are
contemplated by
the Commission, (iv) no notice of objection of the Commission to
the use
of the Registration Statement or any post-effective amendment
thereto
pursuant to Rule 401(g)(2) under the Act has been received by the
Company,
(v) that, subsequent to the date of the most recent financial
statements
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 (vi) 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.
(g) The Agents shall have received from Shearman & Sterling
LLP,
counsel for the Company, an opinion or opinions, dated as of the
date
hereof, and in connection with its purchase of Notes as a Purchaser
pursuant to a Terms Agreement, dated as of the Purchase Date, 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 Consequences" in the Prospectus Supplement is accurate
in all
material respects.
The Company will furnish each Agent with such conformed copies of
such opinions,
certificates, letters and documents as it reasonably requests.
In the event that, after the date hereof, the Company files any
further registration statements for the purpose of registering
Notes and in
connection with which this Agreement is
-17-
included or incorporated by reference as an exhibit, the Company
shall (i)
promptly comply with its obligations and take any steps as are
required to be
taken by it pursuant to Sections 3(a), (d), (e) and (f) and (ii)
after such
registration statement shall have become or been declared effective
by the
Commission and at the time and on the date as shall be mutually
agreed by the
Company and the Agents, deliver to each Agent and its counsel the
opinions,
certificates, letters and other documents required to be delivered
pursuant to
paragraphs (c), (d), (e) and (f) of this Section 4, provided that
none of the
Agents will solicit offers to purchase the Notes registered
pursuant to such
registration statement until such opinions, certificates, letters
and other
documents shall have been so delivered.
In addition to the foregoing, the obligation of any person who has
agreed to purchase Notes through an Agent to consummate such
purchase at the
time designated therefor is subject to the condition precedent that
such Agent
has not chosen to cease soliciting offers to purchase Notes at such
time owing
to failure of the conditions precedent to such solicitation as
provided above.
5. Indemnification and Contribution
(a) The Company agrees to indemnify, defend and hold harmless you
and any person who controls you within the meaning of Section 15 of
the Act or
Section 20 of the Exchange Act from and against any loss, expense,
liability or
claim (including the reasonable cost of investigation) which,
jointly or
severally, you or any such 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, any General Disclosure
Package, 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 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 (i) therein
in conformity with information furnished in writing by you to the
Company
expressly for use in any of such documents or (ii) in any Form T-1
Statement of
Eligibility under the Trust Indenture Act of any Trustee 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. The Company's agreement to indemnify
you or any such
other indemnified person as aforesaid is expressly conditioned upon
it being
notified of the action in connection therewith brought against you
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 you 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 you or to such other indemnified person otherwise than on
account of the
indemnity agreement contained in this Section 5.
The Company shall assume the defense of any suit brought to enforce
any such liability or claim, including the employment of counsel
satisfactory to
you and the payment of all expenses. You or such other indemnified
person
against whom such suit is brought shall have the right to employ
one separate
counsel in any such suit and participate in the defense thereof,
but
-18-
the fees and expenses of such counsel shall be at your 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 you or such
controlling person
and the Company and you 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
Company, in
which case the Company shall not have the right to assume the
defense of such
action on your behalf or on the behalf of such other indemnified
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 you and such other
indemnified
persons, which firm (and local counsel, if any) shall be designated
in writing
by you. 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 you 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) You represent and warrant that the information furnished in
writing by you to the Company expressly for use with reference to
you in the
Registration Statement or the Prospectus does not contain any
untrue statement
of a material fact and does not omit to state a material fact in
connection with
such information required to be stated in the Registration
Statement or the
Prospectus or necessary to make such information not misleading.
You severally agree to indemnify, defend and hold harmless the
Company, its directors and officers and any person who controls the
Company
within the meaning of Section 15 of the Act or Section 20 of the
Exchange 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, any General Disclosure Package, the Prospectus or any
amendment or
supplement thereto which is in reliance on and in conformity with
information
furnished in writing by you to the Company expressly for use with
reference to
you, 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. Your
agreement to indemnify the Company and any other indemnified person
as aforesaid
is expressly conditioned upon your 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 you
shall not relieve you from any liability which you may have to the
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Company or any other indemnified person otherwise than on account
of the
indemnity agreement contained in this Section 5.
You 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 you or (ii) the named
parties to any
suit (including any impleaded parties) include the Company or such
other
indemnified person and you, 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 you, in which case you 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 you 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
person,
which firm (and local counsel, if any) shall be designated in
writing by the
Company. You shall not be liable for any settlement of any such
action effected
without your 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 you 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 of you 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
benefits
received by the Company on the one hand and you on the other shall
be deemed to
be in the same proportion as the total net proceeds to the Company
from sales of
the Notes to which such losses, expenses, liabilities or claims
relate bears to
the aggregate commissions received by you pursuant to Section 2
hereof in
connection with the sale of such Notes. The relative fault of the
Company on the
one hand and of you 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 you 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, damages 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.
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The Company and you agree that it would not be just and equitable
if
contribution pursuant to this Agreement were determined by pro rata
allocation
(even if you 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, you shall not 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 you
exceeds the
amount of the damages which you have 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 Act) shall be entitled to contribution from any person who was
not guilty of
such fraudulent misrepresentation. Your 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 you pursuant to this Agreement bears to the total amount of
such Notes
distributed to the public through all of you pursuant to this
Agreement, and not
joint.
The obligations of the Company and you under this Section 5 shall
be
in addition to any liability that the Company or you may otherwise
have.
6. Position of the Agent Except for purchases pursuant to Section
2(b) hereof, in soliciting offers to purchase the Notes, each Agent
is acting
individually and not jointly and is acting solely as agent for the
Company, and
not as principal. Each Agent shall make reasonable efforts to
assist the Company
in obtaining performance by each purchaser whose offer to purchase
Notes has
been solicited by such Agent and accepted by the Company, but such
Agent shall
not have any liability to the Company in the event any such
purchase is not
consummated for any reason. Except for purchases pursuant to
Section 2(b)
hereof, under no circumstances will such Agent be obligated to
purchase any
Notes for its own account.
7. Termination This Agreement may be terminated at any time either
by the Company as to any Agent or, in the case of any Agent, by
such Agent upon
the giving of written notice of such termination to the other
parties hereto. In
the event of such termination, no party shall have any liability to
the other
parties hereto, except as provided herein and except that, if at
the time of
termination an offer to purchase any of the Notes has been accepted
by the
Company but the time of delivery to the purchaser or its agent of
the Note or
Notes relating thereto has not occurred, the Company's obligations
provided
herein shall not be terminated. In the case of purchases pursuant
to Section
2(b) hereof, the Company's obligations pursuant to Section 3 hereof
shall not be
terminated so long as any Purchaser continues to hold the Note or
Notes as
principal for its own account or for resale to others.
8. Representations, Warranties, Agreements, Indemnities and Other
Statements to Survive The respective representations, warranties,
agreements,
indemnities and other statements of the Company or its officers and
of each
Agent set forth in or made pursuant to this Agreement will remain
in full force
and effect, regardless of any investigation made by or on behalf of
any Agent or
the Company or any of the officers, directors or controlling
persons referred to
above, and will survive delivery of and payment for the Notes. The
provisions of
Sections 3(c), 3(f) and 5 hereof shall survive the termination or
cancellation
of this Agreement.
-21-
9. Notices All communications hereunder will be in writing and will
be mailed, delivered or telegraphed and confirmed to the party
receiving such
communication at its address indicated below:
CIT Group Inc.
1 CIT Drive
Livingston, New Jersey 07039
Attention: Robert J. Ingato, Executive Vice President and General
Counsel
Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
Attention: Medium-Term Note Desk
Telephone: (212) 526-9664
Telecopy: (212) 526-0943
Banc of America Securities LLC
9 West 57th Street
New York, New York 10019
Attention: Rock Fu
Telephone: (212) 847-6434
Telecopy: (212) 847-5184
with a copy to:
Lily Chang
Banc of America Securities LLC
40 West 57th Street, 27th Floor
New York, New York 10019
Telephone: (646) 313-8798
Telecopy: (212) 901-7881
Barclays Capital Inc.
200 Park Avenue
New York, New York 10166
Attention: MTN Trading
Telephone: (212) 412-2663
Telecopy: (212) 412-7305
with a copy to:
Pamela Kendall
Barclays Capital Inc.
200 Park Avenue
New York, New York 10166
-22-
Telephone: (212) 412-7606
Telecopy: (212) 412-7680
Bear, Stearns & Co. Inc.
383 Madison Avenue
New York, New York 10179
Attention: Jonathan Lieberman
Telephone: (212) 272-2703
Telecopy: (917) 849-1160
BNP Paribas Securities Corp.
787 Seventh Avenue
New York, New York 10019
Attention: Debt Capital Markets
Telephone: (212) 841-3320
Telecopy: (212) 841-3930
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Attention: Medium-Term Note Department
Telephone: (212) 816-5831
Telecopy: (212) 816-0949
Credit Suisse Securities (USA) LLC
11 Madison Avenue
New York, New York 10010
Attention: Short and Medium-Term Finance Department
Telephone: (212) 325-7198
Telecopy: (212) 743-5825
with a copy to:
Helena Willner
11 Madison Avenue
New York, New York 10010
Deutsche Bank Securities Inc.
60 Wall Street
New York, New York 10005
Attention: Debt Capital Markets
Telephone: (212) 250-8587
Telecopy: (212) 797-2202
Goldman, Sachs & Co.
85 Broad St.
27th Floor
New York, New York 10004
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Attention: Nick Philip
Telephone: (212) 902-2525
Telecopy: (212) 902-3000
HSBC Securities (USA) Inc.
452 Fifth Avenue
New York, New York 10018
Attention: Medium Term Notes Desk
Telephone: (212) 525-3142
Telecopy: (212) 525-0238
with a copy to:
HSBC Securities (USA) Inc.
452 Fifth Avenue, 3rd Floor
New York, New York 10018
Attention: Andrew S. Lazerus
Telephone: (212) 525-3456
Telecopy: (646) 366-3338
J.P. Morgan Securities Inc.
270 Park Avenue, 8th Floor
New York, New York 10017
Attention: Transaction Execution Group
Telephone: (212) 834-5710
Telecopy: (212) 834-6702
LaSalle Financial Services, Inc.
55 East 52nd Street
New York, New York 10055
Attention: Rob Silverschotz
Telephone: (212)
