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Exhibit 10.3
EXECUTION COPY
CONTRIBUTION
AGREEMENT
This CONTRIBUTION AGREEMENT (this
“ Agreement
”), dated as of June 27, 2007,
is by and between CIT Real Estate Holding Corporation, a Delaware
corporation (“ CIT
Holding ”) and Care
Investment Trust Inc., a Maryland corporation (the “
Company ”).
W I T N
E S S E T H
:
WHEREAS, CIT Holding desires to
contribute all of its right, title and interest to the assets set
forth on Schedule 1 hereto (collectively, the “
Initial Assets
”) to the Company in exchange
for the issuance of 5,256,250 shares of common stock, par value
$0.001 per share, of the Company (the “
Common Stock
”) and a cash payment of
$204,271,261.37 (the “ Cash Payment ”) from the net proceeds of the initial
public offering of shares of common stock of the Company (the
“ IPO
”);
WHEREAS, the Company desires to issue
the Common Stock and to deliver the Cash Payment to CIT Holding in
exchange for CIT Holding’s contribution of the Initial
Assets.
NOW, THEREFORE, in consideration for
the foregoing and other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto agree
as follows:
Section 1. Contribution of the Initial Assets
. On the terms and subject to the
conditions of this Agreement, CIT Holding shall transfer, assign,
convey and deliver to the Company all right, title and interest in
and to the Initial Assets.
Section 2. Payment for the Initial Assets
. In consideration for the
contribution of the Initial Assets, the Company shall (i) issue
5,256,250 shares of Common Stock to CIT Holding and (ii) make the
Cash Payment to CIT Holding. The Cash Payment shall be
proportionately adjusted downward to reflect any payments made to
or received by CIT Holding pursuant to Section 4(a)(i) and
(ii).
Section 3. Closing .
The closing (the “ Closing ”) of the contribution of the Initial Assets
and the payment therefore, including the issuance of the Common
Stock and the delivery of the Cash Payment, shall be held at the
offices of Skadden, Arps, Slate, Meagher & Flom LLP on the date
of the closing of the IPO.
Section 4. Closing Allocations
.
(a) Payments Belonging to CIT Holding
. CIT Holding is entitled to (i) all
payments of principal on the Initial Assets, as well as any
prepayment penalty or premium associated therewith, that are due on
or before the Closing Date and that are collected on or
before that date, (ii) all payments of
principal on the Initial Assets, as well as any prepayment penalty
or premium associated therewith, that are due on or before the
Closing Date and that are collected after that date, and (iii) all
payments of interest that represent interest accruing on the
Initial Assets through and including the day prior to the Closing
Date. If and to the extent any such payments are received by the
Company, the Company will remit such payments to CIT Holding
promptly upon receipt thereof. Notwithstanding its status as owner
of the Initial Assets after the Closing, the Company will not waive
or forgive (or otherwise forbear from the enforcement and
collection of) such payments.
(b) Payments Belonging to the Company
. The Company is entitled to (i) all
payments of principal on the Initial Assets, as well as any
prepayment penalty or premium associated therewith, that are
collected by CIT Holding on or prior to the Closing Date and due
after the Closing Date, (ii) all payments of principal on the
Initial Assets, as well as any prepayment penalty or premium
associated therewith, that are collected after the Closing Date and
due after the Closing Date, and (iii) all payments of interest that
represent interest accruing on the Initial Assets on and after the
Closing Date and that are collected after the Closing Date. If and
to the extent any such payments are received by CIT Holding, CIT
Holding will remit such payments to the Company promptly upon
receipt thereof.
Section 5. Deliveries at Closing .
(a) CIT Holding shall deliver to the
Company at the Closing:
(i) with respect to each of the
Initial Assets identified on Schedule 1 hereto, such endorsements,
assignment and assumption agreements and other instruments of
transfer, all in the form satisfactory to the Company, as may be
required to vest good title in and to the Initial Assets in the
Company (“ Transfer
Instruments ”),
executed by CIT Holding and each other required party other than
the Company;
(ii) copies of any approvals or
consents required under the underlying loan documents more
particularly described on Schedule 1 hereto in order to consummate
the transfers herein contemplated. Schedule 1 identifies each
Initial Asset that requires a consent in connection with the
transaction herein contemplated; and
(iii) any books and records with
respect to each of the Initial Assets identified on Schedule 1
hereto.
(b) the Company shall deliver to CIT
Holding at the Closing:
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(i) a certificate or other
documentation evidencing 5,256,250 shares of its Common
Stock;
(ii) the Cash Payment by wire transfer
of immediately available funds to an account designated by CIT
Holding in accordance with written wire instructions delivered by
CIT Holding to the Company; and
(iii) to the extent applicable,
counterparts of the Transfer Instruments executed by the
Company.
Section 6. Conditions to Closing .
(a) The obligation of CIT Holding to
contribute the Initial Assets to the Company in exchange for the
Common Stock and the Cash Payment is subject to the following
conditions (which conditions may be waived by CIT Holding in CIT
Holding’s sole discretion):
(i) that at the time of the Closing,
each of the representations and warranties of the Company made in
this Agreement shall be true and correct; and
(ii) all required approvals and
consents to the transactions contemplated by this Agreement shall
have been obtained from all necessary third parties; and
(iii) the IPO shall have been
consummated.
(b) The obligation of the Company to
issue the Common Stock and make the Cash Payment to CIT Holding in
exchange for the Initial Assets is subject to the following
conditions (which conditions may be waived by the Company in the
Company’s sole discretion):
(i) that at the time of the Closing,
each of the representations and warranties of CIT Holding made in
this Agreement shall be true and correct;
(ii) CIT Holding shall have executed
and delivered to the Company the Transfer Instruments, executed by
CIT Holding and all other required parties other than the
Company;
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(iii) all required approvals and
consents to the transactions contemplated by this Agreement shall
have been obtained from all necessary third parties;
(iv) to the best of CIT
Holding’s knowledge, there shall be no material pending or
threatened litigation regarding the Initial Assets; and
(v) the IPO shall have been
consummated and the net proceeds therefrom shall have been
delivered to the Company.
Section 7. Representations and Warranties of CIT
Holding . CIT Holding
hereby represents and warrants to the Company, as
follows:
(a) CIT Holding is a corporation duly
organized, validly existing and in good standing under the laws of
the State of Delaware.
(b) CIT Holding has the full power and
authority to enter into and consummate all transactions
contemplated by this Agreement, has duly authorized the execution,
delivery and performance of this Agreement, and has duly executed
and delivered this Agreement.
(c) This Agreement, assuming due
authorization, execution and delivery by the Company, constitutes a
valid, legal and binding obligation of CIT Holding, enforceable
against CIT Holding in accordance with the terms hereof, subject to
(A) applicable bankruptcy insolvency, reorganization, moratorium
and other laws affecting the enforcement of creditors’ rights
generally, (B) general principles of equity, regardless of whether
such enforcement is considered in a proceeding in equity or at law
and (C) public policy considerations underlying the securities
laws, to the extent that such public policy considerations limit
the enforceability of the provisions of this Agreement that purport
to provide indemnification for securities laws
liabilities.
(d) The execution and delivery by CIT
Holding of this Agreement and its performance of, and compliance
with, the terms of this Agreement will not conflict with or
constitute a breach, violation, or default under (A) its
certificate of incorporation or bylaws, (B) any law, any order or
decree of any court or arbiter, or any order, regulation or demand
of any federal, state or local government or regulatory authority,
which violation in CIT Holding’s good faith and reasonable
judgment is likely to affect materially and adversely either the
ability of CIT Holding to perform its obligations under this
Agreement or the financial condition of CIT Holding or (C) any
indenture, loan or credit agreement, or any other agreement,
contract, instrument, mortgage, lien, lease, permit, authorization,
order, writ, judgment, injunction or decree to which CIT Holding is
a party or by which any Initial Asset is bound or affected;
the
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consummation of the transactions
contemplated by this Agreement will not result in the cancellation,
modification or termination of, or the acceleration of, or the
creation of any charges, claims, conditions, options, assignments,
preemptive rights, rights of first refusal, security interests,
hypothecations, encumbrances, mortgages, liens or pledges
(collectively, “ Liens ”) on the Initial Assets pursuant to any
agreement, license, lease, understanding, contract, indenture,
mortgage, instrument, promise, undertaking or other commitment or
obligation (“ Contracts ”) under which CIT Holding or any Initial
Asset is subject to or bound.
(e) CIT Holding has not dealt with any
person that may be entitled to any commission or compensation in
connection with the transfer of the Initial Assets. CIT Holding or
the obligor on the promissory note or notes related to each Initial
Asset (the “ Obligor ”) has paid any and all amounts due to any
such person, and the Company shall have no responsibility for any
payments due any such person.
(f) As of the date of this Agreement,
all of the Initial Assets as described on Schedule 1 are owned by
CIT Holding and CIT Holding has good title to all of the Initial
Assets, free and clear of all Liens.
(g) There are no Contracts, and CIT
Holding will not enter into Contracts, with any other person or
entity to sell, transfer, assign or in any manner create a Lien on,
the Initial Assets, or to not sell, transfer or assign the Initial
Assets to the Company.
(h) No consents or approval, other
than those that have been obtained or will be obtained on or before
the Closing, are required for the transfer of the Initial Assets in
accordance with the terms of this Agreement.
(i) The Transfer Instruments are
sufficient to convey to the Company all right, title and interest
in the Initial Assets in all relevant jurisdictions, except to the
extent that a recording or other filing is required to transfer
such Initial Asset.
(j) To the best of CIT Holding’s
knowledge, there is no material default, breach, violation or event
of acceleration existing und
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